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S. Hrg. 109-397, Pt 6
CONFIRMATION HEARINGS ON FEDERAL
APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
SEPTEMBER 6, 12, 19, AND NOVEMBER 14, 2006
Serial No. J-109-4
PART 6
Printed for the use of the Committee on the Judiciary
S. Hrg. 109-397, Pt 6
CONFIRMATION HEARINGS ON FEDERAL
APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
SEPTEMBER 6, 12, 19, AND NOVEMBER 14, 2006
Serial No. J-109-4
PART 6
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O’Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
(II)
CONTENTS
WEDNESDAY, SEPTEMBER 6, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware 1
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared
statement 178
PRESENTERS
Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware pre-
senting Kent A. Jordan, Nominee to be U.S. Circuit Judge for the Third
Circuit 7
Castle, Hon. Michael, a Representative in Congress from the State of Dela-
ware presenting Kent A. Jordan, Nominee to be U.S. Circuit Judge for
the Third Circuit 6
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio presenting Sara
Elizabeth Lioi, Nominee to be U.S. District Judge for the Northern District
of Ohio 11
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa presenting
John Jarvey, Nominee to be U.S. District Judge for the Southern District
of Iowa 4
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa presenting John
Jarvey, Nominee to be U.S. District Judge for the Southern District of
Iowa 5
Martinez, Hon. Mel, a U.S. Senator from the State of Florida presenting
Marcia Howard, Nominee to be U.S. District Judge for the Middle District
of Florida 10
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio presenting
Sara Elizabeth Lioi, Nominee to be U.S. District Judge for the Northern
District of Ohio 8
STATEMENTS OF THE NOMINEES
Howard, Marcia Morales, Nominee to be U.S. District Judge for the Middle
District of Florida 54
Questionnaire 55
Jarvey, John Alfred, Nominee to be U.S. District Judge for the Southern
District of Iowa 88
Questionnaire 89
Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third Circuit 12
Questionnaire 13
Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the Northern
District of Ohio 114
Questionnaire 115
QUESTIONS AND ANSWERS
Responses of Kent A. Jordan to questions submitted by Senator Leahy 160
SUBMISSIONS FOR THE RECORD
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, statement 167
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, statement .. 170
(III)
IV
Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, statement 176
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, statement .. 183
TUESDAY, SEPTEMBER 12, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma 185
Feinstein, Hon. Dianne, a U.S. Senator from the State of California 284
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared
statement 334
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, prepared
statement 341
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia presenting
Lisa Wood, Nominee to be U.S. District Judge for the Southern District
of Georgia 189
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma pre-
senting Gregory Frizzell, Nominee to be U.S. District Judge for the Western
District of Oklahoma 186
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia presenting
Lisa Wood, Nominee to be U.S. District Judge for the Southern District
of Georgia 190
Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania pre-
senting Nora Fischer, Nominee to be U.S. District Judge for the Western
District of Pennsylvania 188
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania pre-
senting Nora Fischer, Nominee to be U.S. District Judge for the Western
District of Pennsylvania 186
STATEMENTS OF THE NOMINEES
Fischer, Nora Barry, Nominee to be U.S. District Judge for the Western
District of Pennsylvania 192
Questionnaire 193
Frizzell, Gregory, Nominee to be U.S. District Judge for the Western District
of Oklahoma, prepared statement 223
Questionnaire 224
O’Neill, Lawrence Joseph, Nominee to be U.S. District Judge for the Eastern
District of California 256
Questionnaire 257
Wood, Lisa, Nominee to be U.S. District Judge for the Southern District
of Georgia 285
Questionnaire 286
SUBMISSIONS FOR THE RECORD
Boxer, Hon. Barbara, a U.S. Senator from the State of California, prepared
statement 328
Eagan, Claire V., Chief Judge, U.S. District Court, Northern District of Okla-
homa, Tulsa, Oklahoma, letter 331
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma, state-
ment 332
Sartin, Robert B., Barrow & Grimm, P.C., Attorneys at Law, Tulsa, Okla-
homa, letter 339
Wohlgemuth, Joel L., Attorney at Law, Norman, Wohlgemuth Chandler &
Dowdell, Tulsa, Oklahoma, letter 342
TUESDAY, SEPTEMBER 19, 2006
STATEMENTS OF COMMITTEE MEMBERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas
Page
345
V
Page
Leahy, Hon. Patrick J., a U.S. Senator fromthe State of Vermont, prepared
statement 493
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting
Leslie Southwick, Nominee to be District Judge for the Southern District
of Mississippi 346
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting
Leslie Southwick, Nominee to be District Judge for the Southern District
of Mississippi 347
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan presenting
Paul Lewis Maloney, Janet Neff, and Robert Jonker, Nominees to be U.S.
District Judges for the Western District of Michigan 348
STATEMENTS OF THE NOMINEES
Jonker, Robert James, Nominee to be District Judge for the Western District
of Michigan 350
Questionnaire 351
Maloney, Paul Lewis, Nominee to be District Judge for the Western District
of Michigan 377
Questionnaire 378
Neff, Janet T., Nominee to be District Judge for the Western District of
Michigan 402
Questionnaire 403
Southwick, Leslie, Nominee to be District Judge for the Southern District
of Mississippi 441
Questionnaire 442
QUESTIONS AND ANSWERS
Responses of Robert James Jonker to questions submitted by Senator Leahy .. 483
Responses of Robert James Jonker to questions submitted by Senator Ken-
nedy 488
SUBMISSIONS FOR THE RECORD
Levin, Hon. Carl, a U.S. Senator from the State of Michigan, prepared state-
ment 492
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, prepared
statement 498
TUESDAY, NOVEMBER 14, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick, a U.S. Senator from the State Vermont, prepared state-
ment 565
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania 501
PRESENTER
Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania pre-
senting Thomas Hardiman, Nominee to be U.S. Circuit Judge for the Third
Circuit 502
STATEMENT OF THE NOMINEE
Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for the Third
Circuit 503
Questionnaire 504
QUESTIONS AND ANSWERS
Responses of Thomas M. Hardiman to questions submitted by Senators Leahy
and Feingold 557
VI
Page
ALPHABETICAL LIST OF NOMINEES
Fischer, Nora Barry, Nominee to be U.S. District Judge for the Western
District of Pennsylvania 192
Frizzell, Gregory, Nominee to be U.S. Distrct Judge for the Western District
of Oklahoma 223
Hardiman, Thomas Michael, Nominee to be U.S. Circuit Judge for the Third
Circuit 503
Howard, Marcia Morales, Nominee to be U.S. District Judge for the Middle
District of Florida 54
Jarvey, John Alfred, Nominee to be U.S. District Judge for the Southern
District of Iowa 88
Jonker, Robert James, Nominee to be District Judge for the Western District
of Michigan 350
Jordan, Kent A., Nominee to be U.S. Circuit Judge for the Third Circuit 12
Lioi, Sara Elizabeth, Nominee to be U.S. District Judge for the Northern
District of Ohio 114
Maloney, Paul Lewis, Nominee to be District Judge for the Western District
of Michigan 377
Neff, Janet T., Nominee to be District Judge for the Western District of
Michigan 402
O’Neill, Lawrence Joseph, Nominee to be U.S. District Judge for the Eastern
District of California 256
Southwick, Leslie, Nominee to be District Judge for the Southern District
of Mississippi 441
Wood, Lisa, Nominee to be U.S. District Judge for the Southern District
of Georgia 285
NOMINATION OF KENT A. JORDAN, NOMINEE
TO BE CIRCUIT JUDGE FOR THE THIRD
CIRCUIT; MARCIA MORALES HOWARD,
NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA; JOHN AL-
FRED JARVEY, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF
IOWA; AND SARA ELIZABETH LIOI, NOMI-
NEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF OHIO
WEDNESDAY, SEPTEMBER 6, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:12 p.m., in room
226, Dirksen Senate Office Building, Hon. Mike DeWine presiding.
Present: Senator Biden.
OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR
FROM THE STATE OF OHIO
Senator DeWine. The committee will come to order.
Today we will have a confirmation hearing for four of the Presi-
dent’s judicial nominees, one nominee for the Court of Appeals and
three District Court nominees.
We appreciate everyone’s willingness to appear before the com-
mittee today. I am particularly glad to see Judge Lioi, a fellow Ohi-
oan here with us today, and we welcome her.
I believe that today’s hearing will show that all of our nominees
are well qualified for their respective positions and that we will
then be able to move all of the nominations quickly to the Judicial
Committee for action.
At this point let me turn to Senator Biden for any comments that
he would like to make.
[The prepared statement of Senator DeWine appears as a sub-
mission for the record.]
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator Biden. Mr. Chairman, thank you for convening this
hearing and allowing me, first of all, to welcome all the nominees.
(l)
2
I think your assessment of their qualifications is correct, and I look
forward to hearing the testimony.
But I would also like to welcome to the committee my two Dela-
ware colleagues, Senator Carper and Congressman Castle, who is
twice as powerful as us. He is the only Representative in the State,
and so he represents all the State; Tom and I split it up.
[Laughter].
But I am glad my colleagues are here.
I am also pleased to play a dual role today of not only serving
as the Ranking Member for this hearing — by the way, this is the
closest I have gotten to the Chairman’s seat in about 10 years,
after sitting here 17 years. Thanks for letting me have this shot.
Senator DeWine. It is nice to be in it, actually.
Senator Biden. That is right.
[Laughter],
But I have the honor of introducing a really fine Delawarean,
Judge Kent Jordan, who has been nominated by the President to
sit on the Third Circuit Court of Appeals.
But before I talk about the Judge, allow me to say a few words
about the Judge whom Judge Jordan has been nominated to re-
place. This spring, Judge Jane Roth, our former colleague Bill
Roth’s wife, informed the President that she would be seeking sen-
ior status.
I would like to publicly acknowledge what a great judge Judge
Roth has been, her service to this country, her dedication to the
rule of law, and her stellar representation on the Third Circuit
Court of Appeals.
I am sure every Senator believes their circuit is the most
vaunted and honorable of them all, but we have a great, great his-
tory in the Third Circuit and some truly nationally renowned
Judges, as other circuits do as well. Jane Roth fit the Delaware
seat marvelously.
I have known Jane for many years, as both my colleagues have,
and I look forward to her continuing her brilliant career as a senior
Justice.
By being nominated to fill Judge Roth’s seat, Kent Jordan has
a very significant space to fill. I am confident, based on his conduct
at the District Court level and all those in both political parties
who have recommended him highly, that he will do exactly that.
It is almost exactly four years to the day that I introduced Kent
Jordan to this committee to be District Court Judge, and he has
performed by every measure with flying colors.
During his 22-year legal career, Judge Jordan has excelled at
every step of the way. He started his legal career as a law clerk
for one of the most respected Judges ever to serve on the Federal
bench in our State, again known to both my colleagues, Judge
James Latchum, who served on the very bench on which the Judge
now serves.
Kent went on to serve as Assistant U.S. Attorney in Delaware for
five years, and at the time he worked on some highly publicized
cases, bringing some very bad people to justice, and also admin-
istering justice with an even hand.
He moved on to become a partner in one of Delaware’s top law
firms, Morris, James, Hitchens & Williams, working there for five
3
years. Then Kent became General Counsel to a 102-year-old cor-
poration services company known as CSC, as it is known nationally
as one of the leading incorporation service companies in the world.
For the past four years he has served with distinction on the Dis-
trict Court. As I said, he has drawn praise from his colleagues on
the District Court, from the lawyers who have appeared before
him, and from his soon-to-be colleagues on this Third Circuit Court
of Appeals.
His colleagues describe him in many ways, but the adjectives
that always come up are “bright”, “hardworking”, “deep sense of in-
tegrity”, “intellectual honesty”. I do not know what else you could
ask for a Judge. I must tell you, I have become convinced he is
open-minded, collegial, and most of all, fair.
He is accompanied today by his wife, Michelle. Michelle, I did not
warn you of this, and I do not want to embarrass you. Would you
please stand up and let folks see you here? This is all the more rea-
son why we should confirm Kent Jordan.
Kent and Michelle have six children, and I will let him do the
introductions of that, that range from ages 11 to 24. On my moth-
er’s side — I realize Kent is LDS and I am an Irish Catholic. But
if my mother were here, Kent, she would say, “no purgatory for
you. Straight to heaven.”
[Laughter],
Six kids, 11 to 24. Their youngest are here. Three of the youngest
are here today, and I will ask Kent, when it comes his time, to in-
troduce them as well.
So, Mr. Chairman, I thank you again. I am anxious to hear from
the witnesses. I know Senator Grassley has to leave very shortly,
and I know Congressman Castle as well has to manage a bill in
the House. But I want to welcome the Jordans, and I thank you
for the time.
Senator DeWine. Senator, thank you very much. I will have to
tell my wife about that purgatory issue. With eight kids, I have to.
Senator Biden. She is in it right now and she does not know it.
[Laughter],
Senator DeWine. I will have to think about that, Senator, a little
bit. That is good.
Senator Grassley, we will start with you. I must say, Senator
Grassley, before we let you start, I have to put a little plug in here
for Ohio about Judge Jarvey.
Although he is nominated for a position from Iowa, I would be
remiss in my obligation as Senator from Ohio to mention that the
Honorable Judge received his B.S. degree from Akron in 1978. So,
I will put that little plug in there.
Senator Grassley. You do not get on the bench with a B.S., so
remember his J.D. from Drake Law School.
Senator DeWine. I understand that.
[Laughter],
I understand that. We have got a good start, though.
You are up, Senator.
4
PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA,
BY HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. You have made my speech. It is a pleasure
today to introduce to the committee a distinguished Iowan who has
been nominated to the Federal bench. Judge John Alfred Jarvey,
from Cedar Rapids, Iowa, will serve as District Judge for the
Southern District. He is an extremely qualified individual and I am
proud to be here to support this nomination and introduce him to
the committee.
Judge Jarvey was born in Minneapolis. He is married to Mary,
who is an instructor of piano. Judge Jarvey graduated, as you said,
from the University of Akron in 1978 with a degree in Accounting,
and then received his J.D. degree from Drake University in 1981.
He clerked for two years for Judge Donald O’Brien of the North-
ern District of Iowa. In 1983, he joined the Justice’s Criminal Divi-
sion as a trial attorney, where he prosecuted drug, tax evasion,
money laundering, and firearms, and he happened to specialize in
prosecuting medical professionals involved in pharmaceutical drug
diversion.
Since 1987, Judge Jarvey has been Chief Magistrate Judge for
the Northern District of Iowa. In this position, Judge Jarvey has
presided over a wide range of criminal and civil cases, such as
cases involving personal injury, employment discrimination, and
other employees’ rights, as well as patents, copyrights, and com-
mercial disputes that are complex.
In addition, since 1993, Judge Jarvey has been a trial advocacy
instructor at the University of Iowa Law School. Judge Jarvey en-
joys tremendous support from his peers. I received many letters
praising Judge Jarvey’s judicial temperament, courteousness to all
litigants, respect for, and commitment to, our judicial system, and
favorable comments about Judge Jarvey’s ethics and abilities as an
administrator, and complimentary statements about Judge Jarvey’s
intelligence, command of the law, and rules of evidence, fairness,
and respectful judicial demeanor in court.
I just want to quote from a couple, but I have got a longer state-
ment I am going to put in the record. From one attorney, “Judge
Jarvey’s decisions are thoughtful and well-reasoned. He clearly is
guided by the rule of law and does not legislate from the bench.”
Another one: “What is clear to me from my experience with Mag-
istrate Jarvey is that he is, first and foremost, an exceptional legal
mind. His ability to grasp complicated and dense fact patterns in
a clear and concise manner is well known and respected in our dis-
trict. He issues decisions which are well-reasoned and in harmony
with the law of our jurisdiction.” That is the end of that quote, but
there are others that will be submitted.
Judge Jarvey has had a distinguished legal career and shown
tremendous dedication to public service. He will be a tremendous
asset to the District Court of the Southern District of my State.
As I noted, so many people agree that Judge Jarvey is a talented
individual that deserves to be a Federal Judge and he brings with
him the ABA unanimously giving him the rating of “Well Quali-
fied”.
5
I am confident that Judge Jarvey possess the skill, integrity,
commitment, intellect, and temperament that we all look for in
good Judges, so it is with great respect and admiration that I rec-
ommend this highly qualified individual to the Judiciary Com-
mittee for favorable consideration and hope we can get him ap-
proved before we adjourn.
Senator DeWine. Senator Grassley, thank you very much.
Senator Grassley. Thank you.
Senator DeWine. Senator Harkin?
PRESENTATION OF JOHN ALFRED JARVEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA,
BY HON. TOM HARKIN, A U.S. SENATOR FROM THE STATE OF
IOWA
Senator Harkin. Thank you very much, Mr. Chairman. I join
with my colleague, Senator Grassley, to give my unqualified sup-
port to John Jarvey to be a Federal District Judge for the Southern
District of Iowa.
As Senator Grassley said, John is currently a Magistrate Judge
in the Northern District, a position he has had for 18 years.
I had a chance to meet with him, not for the first time, last
month in Iowa when we were out for our August break. And Mr.
Chairman and members of the committee, I can tell you that, after
18 years, I believe it is time for a promotion.
John Jarvey started his legal career as a clerk to Federal Judge
Donald O’Brien, as Senator Grassley said, an excellent training
ground for a future Federal Judge. In his years as a Magistrate,
he has developed an excellent reputation as a fair-minded Judge
with a devotion to the law and as a strong believer in judicial inde-
pendence.
Based on the calls and letters received by my offices throughout
Iowa, he has earned respect and admiration across the board. In
fact, the Chief Judge of the Southern District, the Honorable Rob-
ert Pratt, and the Clerk of the Southern District, Marjorie Krahn,
are with us today to demonstrate their support also.
In his years as a Magistrate, John Jarvey has devoted a tremen-
dous amount of time and energy to successful mediations, including
a very difficult tribal dispute in Iowa. He also regularly teaches the
trial skills he developed as a Federal prosecutor to students at
Drake University and the University of Iowa Law Schools.
As anyone who has spoken for more than a few minutes to John
Jarvey knows, he is also a committed husband and father.
In selecting John Jarvey to be a Federal District Judge I believe
the President has made a very good choice, and I look forward to
his speedy confirmation.
Thank you very much, Mr. Chairman.
Senator DeWine. Senator, thank you very much.
Representative Castle?
6
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIR-
CUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. MICHAEL
CASTLE, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF DELAWARE
Representative Castle. Thank you, Senator. I am also pleased to
be here to support Kent Jordan. I guess it is a little bit unusual
that you would have the entire delegation from one State sup-
porting a person when there is three of us. It is easy when we all
know the person and think so highly of him. It is even simpler, per-
haps, than that.
Delaware, of course, is a small State, but for those who know
anything about the law, it is a State which has a very highly-devel-
oped legal community and judicial community because of the incor-
poration statutes, and other reasons why Delaware is a central
place for people to come.
As a matter of fact, the Chamber of Commerce ranked Dela-
ware’s Judges the highest in all five categories they looked at
across the entire United States of America.
Kent Jordan came to the Delaware District Court and has just
done a wonderful job there. I followed this carefully because I was
involved in the initial selection process when he was nominated.
I can tell you, as one who practiced law in front of a lot of these
Judges, very few do it as well as Kent has done it. He runs on
time. He makes his decisions in a precise way. He has reduced the
workload of that court for the other Judges. He has just done a
great job — even a sensational job — on our District Court, so we are
pleased that he has been nominated for the Third Circuit Court of
Appeals.
He did receive the unanimous vote of the Senate when he went
before you for the District Court, and we hope it can be the same,
and obviously swiftly, if possible, for the Third Circuit Court of Ap-
peals.
He, as Senator Biden has already indicated, was one of the top
prosecutors and litigators in Delaware, and even has some corpora-
tion background, which is helpful as well. He is filling big shoes.
Again, typical of Delaware, I guess I have known Jane Roth all
my life. I guess she sort of knew me before I could know her, be-
cause she was a friend of my older sister’s, kind of thing.
She was a wonderful Judge, too, and we are sorry to see her
move on to senior status, but we are delighted that we have some-
body of Kent’s ability to do this. All the things that one would look
for in a Judge, patience, intelligence, experience, are there. The
“Well Qualified” rating unanimously by the Bar Association, which
we all look for is there.
In the case of Delaware, on the Third Circuit, we only have 2 of
the 14 places and we have a wonderful Judge there, Judge Tom
Ambrow, on that court now. But New Jersey, Pennsylvania, and
the Virgin Islands — I have always wondered why the Virgin Is-
lands was lumped with that, but it is probably a nice place to go
on the circuit every now and then — serve that particular area, and
we want the best Judges we can get from Delaware.
In my judgment, we have picked one of the best Judges you could
find in the United States of America. So, we are looking forward
to supporting Kent in every way we can.
7
He has a large family, most of which is here, his lovely wife and
three of the kids, and many, many other supporters. When you are
in a small State like ours, Senator, you hear a lot about people.
You usually get to have a pretty good idea of who they are.
I have never heard a disparaging or discouraging word about
Kent and the wonderful job he is doing in our District Court. So,
I recommend him heartily to all of you here in the United States
Senate.
If I may be excused at some point, I have got to manage a bill
over on the floor of the House and I have to run.
Senator DeWine. We understand.
Representative Castle. But I thank you so much for the oppor-
tunity of being able to speak on behalf of Kent. I appreciate it.
Senator DeWine. Thank you, Congressman. Thank you very
much.
Senator Carper?
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE CIR-
CUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. THOMAS R.
CARPER, A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks very much. I have a sense of deja vu
here. What was it, four years ago?
Senator DeWine. Another Ohio State graduate here.
Senator Carper. There we go. OH. OH. It was not that long ago,
I think four years ago, that a number of us were here for a similar
hearing when Judge Jordan was nominated to be a District Judge.
At the time I think the children were a little bit younger, and
I know there are three of them here that look a little bit bigger.
I told them they have done a good job in raising their dad, and
they all agreed that he turned out pretty well.
As stated by my colleague Joe Biden and our colleague Mike Cas-
tle, Delaware is a little State and you know one another. If there
are good things to say about a person, you hear those. If there are
not such good things to say about someone, you hear those as well.
In the time that I have known Kent Jordan, in the time that he
has been in public life, we only hear good things about him.
When I appeared before this committee with our Senator and our
Congressman four years ago, I indicated when I used to be a gov-
ernor, like Governor Voinovich over here, I used to have the oppor-
tunity to nominate people to serve on the bench.
There was a litmus test of sorts that I used in nominating peo-
ple. I always looked for people who were bright, I looked for people
who knew the law. I looked for folks who had good judicial tem-
perament, who treated people in the courtroom on either side with
equal respect and made them feel welcome and listened to.
I looked for people who had good judgment, not only who had
good judgment, but were also able to make a decision. You do not
always find that in everybody who serves as a Judge.
I looked for folks who were hard workers. You never wanted to
nominate anybody to the bench who was going to get on the bench
and, frankly, not work very hard. Kent Jordan meets that litmus
test to a “T”.
8
I am proud that we were able to support his nomination four
years ago. I think it speaks volumes that the entire delegation is
here on his behalf, voicing our support of him and our approval.
I want to say to his children, half of whom are here, and to his
wife Michelle, thank you very, very much for sharing with us a
good father and a good husband to serve the people, not just in our
State, but of our country.
As we think about the Third Circuit Court of Appeals, we lost
some real good people from the Third Circuit. One has gone on to
be a Cabinet Secretary, one has gone on to be a Supreme Court
Justice, and one has just gone to the end of his life, Ed Becker, who
is one of the finest people I have ever had the privilege of knowing
and working with.
Now Judge Roth moves to senior status, and she will obviously
be active and involved. Of all the people I have ever known on the
bench, Federal or State, she was in many ways the epitome of what
a Judge should be about.
She was all the things I just mentioned. In addition to that, she
is someone who has a sparkling sense of humor and someone with
whom it is just great to spend a little bit of time.
Speaking of her, my hope is that by the end of this year we will
have the opportunity in our State, as Senator Biden and Congress-
man Castle know, of actually naming the most beautiful bridge in
our State over the Chesapeake and Delaware Canal, a bridge built
in large part because of the hard work of Bill Roth, after Judge
Roth’s husband, the late Senator Bill Roth.
I am pleased to be here to support Judge Jordan’s nomination
and elevation to the Third Circuit Court of Appeals, and my hope
is that he will be confirmed. Thank you so much.
Senator DeWine. Senator Voinovich?
PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO,
BY HON. GEORGE V. VOINOVICH, A U.S. SENATOR FROM THE
STATE OF OHIO
Senator Voinovich. Thank you, Mr. Chairman. It is a pleasure
for me to be here today and to speak on behalf of a very deserving
person from the State of Ohio, and I am here to express my strong
support for Judge Sara Lioi.
I feel kind of good about it, because I appointed Judge Lioi to the
Court of Common Pleas back when I was governor of Ohio in 1997,
and after that she was elected to retain her seat, then was elected
to a six-year term. It is kind of satisfying to me today to know that
the President has nominated her for a Federal Judgeship.
I welcome the committee’s review of Judge Lioi. I believe that
you will come to the same conclusion that I have, that she is well
qualified to serve as a Federal District Court Judge, and should be
confirmed by the Senate.
She has a distinguished and impressive record as an attorney in
private practice, as a Ohio Court of Common Pleas Judge, as I
mentioned, a community leader, and she has deep roots in Stark
County, Ohio.
She is a native of that county and the youngest of seven children.
Judge Lioi graduated from GlenOak High School and from Bowling
9
Green State University, where she graduated summa cum laude
and earned the distinction of Phi Beta Kappa, she was an out-
standing student.
She went on to attend my law school and alma mater, the Moritz
College of Law at the Ohio State University, receiving her law de-
gree in 1987. After graduating from law school, Judge Lioi joined
the law firm of Day Kidder, the oldest law firm in Stark County,
as an associate.
She was later recognized by her colleagues when they elected her
to the firm’s partnership in 1993. As an attorney, she represented
individuals, schools, and other institutions of higher learning, cit-
ies, small business, and multinational corporations. While in pri-
vate practice, she represented clients at both the trial and appel-
late levels.
Since ascending to the bench, Judge Lioi has disposed of over
9,500 cases and conducted over 350 trials, over 335 of which were
jury trials. In sum, she has broad courtroom experience, both on
and off the bench. This extensive experience will serve her well as
a Federal trial court Judge.
She has also earned the respect of her colleagues and fellow at-
torneys. During her time as a practicing attorney she served on the
Supreme Court of Ohio’s Board of Commissioners on Grievances
and Discipline, and for over 10 years she has served on the Su-
preme Court of Ohio’s Board of Commissioners on Character and
Fitness, including the last five years as chairman of that commis-
sion. I believe her service on these commissions evidences the high
esteem and the high character in which members hold her in terms
of her background.
Her legal credentials are not the only reasons I support her.
Today, too many people do not take the time to become involved
in their communities. However, the Judge Lioi participates actively
in a number of civic organizations.
A graduate of Leadership Stark County, she has remained active
with that program and serves on the boards of several nonprofit
community agencies, including community services of Stark Coun-
ty, Stark County Humane Society, the Walsh University Advisory
Board, and the Plain Local Schools Foundation.
I believe that one’s involvement in a community is important. We
need Federal judges not only that have exceptional legal skills, but
also recognize how the law impacts individuals and communities.
I believe she has this understanding because she works in a com-
munity every day.
As a result of her fine academic and professional achievements,
I am not surprised that the American Bar Association found her
unanimously “Well Qualified” to serve as a Federal District Court
Judge.
In reviewing her academic and professional record, it is clear
that she is well qualified to serve as a Judge on the U.S. District
Court for the Northern District of Ohio, and there is nobody in this
room that knows more about the fact that she is well qualified than
the Chairman of this committee, Senator DeWine, who has spent
a great deal of time with the Judge.
10
I am very happy to be here today to speak on her behalf and to
second the good work that our Senator from Ohio has done in this
case.
Senator DeWine. Senator, thank you very much.
Senator Martinez?
PRESENTATION OF MARCIA MORALES HOWARD, NOMINEE TO
BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLOR-
IDA, BY HON. MEL MARTINEZ, A U.S. SENATOR FROM THE
STATE OF FLORIDA
Senator Martinez. Mr. Chairman, thank you very much, Senator
Biden. I wanted to be here today to introduce to the committee a
Floridian, a friend, Magistrate Judge Marcia Morales Howard.
Judge Howard appears before the committee today for a discus-
sion of her nomination to serve on the Middle District of Florida,
and I appreciate the opportunity to be here to speak on her behalf.
I am very proud of the fact that Judge Howard was rec-
ommended by the Florida Judicial Nominating Commission, which
Senator Nelson and I have empaneled, which ensures that Florida
has a nonpartisan judicial nominating process and allows us to
move candidates forward in a timely manner with nominations for
important Federal Judgeships, such as this one.
I particularly take seriously an appointment to this court. I prac-
ticed for many years before the Middle District of Florida and al-
ways held in high esteem the members of the bench before whom
I practiced, all of whom I thought were excellent Judges with the
right judicial temperament and wisdom, as well as integrity.
Judge Howard has a Bachelor of Science degree in Economics
from Vanderbilt University, and she graduated with Honors from
the University of Florida College of Law. She then went on to be-
come an accomplished litigator for 13 years in Jacksonville, Flor-
ida, practicing insurance defense, labor, and employment law, and
commercial personal injury litigation for two very fine law firms,
Foley Lardner and McGuire Woods.
During her litigation career, Judge Howard also gave of her time
to public service, being appointed by Governor Bush to serve on the
Jacksonville Board of Transportation Authority from 1999 to 2003,
and also being appointed by the mayor of Jacksonville to serve on
Jacksonville’s Human Rights Commission.
In 2003, she was appointed to serve as a Magistrate Judge for
the Middle District of Florida. Judge Howard, therefore, knows the
Judges and the operation of the Middle District. As a Magistrate
Judge, she has been responsible for adjudicating criminal cases, So-
cial Security appeals, and resolving non-dispositive matters in civil
cases.
Judge Howard is an experienced Judge with a modest judicial
philosophy who understands the supreme importance of judicial
independence and the impartial role a Judge plays in our justice
system.
I believe she will be an outstanding Judge for the Middle District
of Florida, a person that I believe to be extremely well qualified,
and I am delighted to have an opportunity to be here today and
recommend her to the committee.
11
I know she will add very needed diversity to this Middle District
of Florida. We have in Florida a very diverse State, and I think her
appointment will only enhance the people’s confidence in the judici-
ary and the process by which we select our Judges.
So, I thank you for allowing me an opportunity to present this
very outstanding candidate.
PRESENTATION OF SARA ELIZABETH LIOI, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO,
BY HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE
OF OHIO
Senator DeWine. Senator, thank you very much. We will thank
our panel very much.
Before I bring up our nominees, I would like, as a Senator from
Ohio, to say a few words about Judge Sara Lioi from Ohio.
I will not give my entire statement. Senator Voinovich has cov-
ered a great deal of Judge Lioi’s background, and I would just like
unanimous consent at this point to make my entire statement a
part of the record, and it will be so made a part of the record.
Just adding a few comments, it should not surprise anyone that
those who know Judge Lioi best regard her with tremendous re-
spect and admiration. Senator Voinovich and I, when we were
searching for an individual to take this position to make the rec-
ommendation to the President of the United States, spent consider-
able time talking to lawyers in the Northern District.
It came back unanimous, frankly, about her, her traits. She was
described in glowing terms as bright, conscientious, fair, impartial,
ethical. She is known as a Judge who treats everyone who appears
before her courteously and with great respect. She has the sort of
judicial temperament that we hope for and really expect from all
our Judges.
Not surprisingly, the ABA has given her, as Senator Voinovich
said, a unanimous rating of “Well Qualified”, which of course is the
highest rating that they can give.
For all these reasons, Judge Lioi is well suited to be a Federal
Judge. She has the character, she has the intelligence you want to
see in a Federal Judge.
The other attribute that anyone who knows her will attribute to
her, is how hard-working she is. She gets in early, she stays very,
very late, and she is extremely dedicated. She understands the role
of a Judge in our system of government.
She is known by those who work with her as an excellent Judge.
And just as important, she is the kind of person whom we can trust
with the great responsibilities that come with being a Judge.
So Senator Voinovich and I are proud to recommend her nomina-
tion as the United States District Court Judge of the Northern Dis-
trict of Ohio the President, and I am gratified that President Bush
has nominated her for that position. I believe that she will serve
very ably as a Federal Judge for the people of the State of Ohio.
I would now ask that our nominees come forward to be sworn at
this time. If all four nominees could come forward. Please remain
standing. If you all would raise your right hand.
[Whereupon, the nominees were duly sworn.]
Senator DeWine. Please take your seat.
12
We welcome all of you today. Each one of you will be able to
make a statement if you wish. We would also ask you to introduce
any members of your family or friends that you have with us.
We will start with you, Judge Jordan.
STATEMENT OF KENT A. JORDAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT
Judge Jordan. Thank you very much, Senator DeWine. It is an
honor and privilege to be here. I appreciate having this opportunity
to speak to you. I want to thank you, Senator DeWine, for chairing
this hearing.
I express my sincere gratitude to Senator Biden, to Senator Car-
per, and to Congressman Castle for taking time out of what I know
are intensely busy schedules to be here and speak so kindly on my
behalf.
I am grateful to have members of my family with me today, my
wife Michelle, and three of my sons: Clinton, who is known by one
and all as “Bubba,” 16 years old; 14-year-old K.C.; and, as Jesse
is quick to note, almost 12-year-old Jesse.
My three older children are out west at school or serving in the
mission field. I miss Bethany and Nate, but I know they are pull-
ing for me where they are, as is Bethany’s husband, Thane, and
my folks.
I am very fortunate to have good friends with me here as well:
my secretary for many years, Cheryl Stein, and my co-clerk when
I was clerking at the District Court, Kevin Brady, is here with me,
as well as several of my current and former law clerks, if I could
be permitted to just mention their names. Here today is Matt Per-
son, Susan Coletti, Rob Weinschenk, Jason Nance, and Bart
Kirstinbluth are all here to support me, and I appreciate that ex-
tended clerk family.
I would like to say a quick thank-you and note my appreciation
as well for the mentoring I received over the years from Judge
Roth, who people have spoken about here already today. She is a
wonderful Judge, a great friend, and it is a real honor to be consid-
ered for the seat that she has filled with such great dignity and so
very well these many years.
[The biographical information of Kent Jordan follows:]
13
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Kent Amos Jordan
2. Address: List current place of residence and office address(es).
Residence: Hockessin, Delaware
Office: United States District Court
844 King Street - Lock Box 10
Wilmington, Delaware 19801
3. Date and place of birth.
October 24, 1957, West Point, New York
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es).
Married to Michelle Weaver Jordan, whose full-time occupation is homemaker. In 2006,
Michelle worked part time as a teacher’s aid for Red Clay Consolidated School District,
2916 Duncan Road, Wilmington, Delaware 19808.
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Georgetown University Law Center; attended 9/81 to 5/84; J.D. awarded, cum laude.
May 28, 1984.
Brigham Young University; attended 9/75 to 12/76 and 1/79 to 4/81; B.A. in Economics
awarded, with High Honors, April 24, 1981.
6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
Corporation Service Company; Vice President & General Counsel (1998 to 2002)(related
operating entities included The Company Corporation, Corporate Domains, Inc.,
Corporate Agents, Inc., The Prentice-Hall Corporation System, Inc., The United States
Corporation Company, and AccountStreet, Inc. The holding company of these entities
1
14
was WMB Holdings, Inc.).
Morris, James, Hitchens & Williams LLP; Partner (1994 to 1997), Associate (1992 to
1993).
Assistant United States Attorney for the District of Delaware (1987 to 1992).
Potter Anderson & Corroon; Associate (1985 to 1987).
U.S. District Court, Chambers of The Honorable James L. Latchum; Law Clerk (1984 to
1985).
University of Pennsylvania Law School; Adjunct Professor (2005 to present).
Vanderbilt University School of Law; Adjunct Professor (2003 to present).
Widener University School of Law; Adjunct Professor of Law (1995 to 1996; 2006 to
present).
VanCott Bagley Cornwall & McCarthy; Summer Law Clerk (Summer 1983).
Crystal Springs (Water Park); Laborer (Summer 1982).
Steve Zundel (Forestry Services); Laborer (Summer 1982).
Fraser Associates; Research Assistant (Summer 1981).
Richard S. Rodney American Inn of Court; President (2005 to present); Counselor (1996
tol999), Member of the Executive Committee (1994 to 1999; 2003 to present),
Secretary-Treasurer (1994 to 1996).
The Capital Trust Company of Delaware; Member of the Board of Directors (2000 to
2002 ).
Entity Services Group, LLC; Member of the Board of Directors (2000 to 2002).
Afilias Limited; Member of the Board of Directors of company and its predecessor in
interest, Afilias LLC (2000 to 2002), Member of Executive Committee (2000 to 2001).
Board of Bar Examiners; Member of the Board (2001 to 2002), Secretary (1997),
Assistant Secretary (1995 to 1996), Associate Member (1993 to 1994).
Delaware Valley Chapter of the American Corporate Counsel Association; Member of the
Board of Directors ( 1 999 to 2002), First Vice President (2002), Second Vice President (200 1 ).
2
15
Greater Hockessin Area Development Association; Member of the Board of Directors (1991
to 2001), President (1992).
Village of Manley Civic Association; Member of the Board of Directors (1998 to 2001),
President (2000 to 2001), Vice President (1998 to 1999).
Japan America Society of Delaware; Member of the Board of Trustees (1999-2000).
Delaware Chapter of the Federal Bar Association; Treasurer (1997).
Community Legal Aid Society, Inc.; Member of the Board of Directors (1994 to 1997).
Hickory Hill Civic Association; Member of the Board of Directors and President (late
80’s, early 90’s).
Delaware Society for the Prevention of Cruelty to Animals; Member of the Board of
Directors (late 1980's to early 1990's).
Mental Health Association of Delaware; Member of the Board of Directors (mid 1980's).
Jorfam LLC, family LLC member (2004 to present)
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
I have never served in the military. (I was an ROTC cadet while a student at Brigham
Young University from 1975 to 1976 and in 1979.)
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Recipient, Caleb R. Layton III Service Award, presented periodically by the Judges of
the United States District Court for the District of Delaware to an attorney who,
“personifies the qualities of a federal practitioner: legal acumen, professional decorum,
public service” (1998).
Recipient, New Lawyers Distinguished Service Award, presented annually by the Delaware
State Bar Association to an attorney with less than ten years at the bar, “who by exemplary
leadership and service dedicated to the cause of good citizenship in civic and humanitarian
service ... has maintained the integrity and honored recognition of the legal profession in
community affairs . . . , thus reflecting high honor on both country and profession” ( 1 992).
3
16
Juris Doctor degree awarded cum laude from Georgetown University Law Center (1984);
Dean’s list (1981-84); Selected to join the staff (1982-83) and the Editorial Board (Articles
Editor; 1983-84) of the Georgetown Law Journal.
Bachelor of Arts in Economics awarded with High Honors from Brigham Young University
(1981); Dean's list (1980); Earl Crockett Scholarship for Economics (1980); Army ROTC
Scholarship (1976); Dean's Scholarship (1975).
9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
Member of the Third Circuit Model Civil Jury Instruction Committee (by appointment of the
Chief Judge of the United States Court of Appeals for the Third Circuit; 2004 to present).
Member of the Third Circuit Judicial Conference Committee on Magistrate Judges (by
appointment of the Chief Judge of the United States Court of Appeals for the Third Circuit;
2005 to present).
“Bencher” of the Richard S. Rodney Chapter of the American Inns of Court (1996 to present);
President (2005 to present); Counselor (1996 to 1999); Member of the Executive Committee
(1994 to 1999; 2003 to present); Secretary-Treasurer (1994 to 1996); Barrister (1985 to 1988;
1994 to 1996).
American Judicature Society, Member of National Advisory Council (2006 to present);
Georgetown University Law Center, Member of Electronic Discovery Institute Advisory Board
(2005 to present);
Federal Judges Association, Member (2003 to present).
Ombudsman for the United States District Court for the District of Delaware (by appointment of
the District Court; 1995 to 2002).
Member of the Delaware State Bar Association (1984 to present); Member of the Executive
Committee (July 2002); Member of the Standing Committee on the Provision of Legal
Services to Low Income People ( 1 998 to 2002); Member of the Intellectual Property Section
(1996 to 2002); Council Member of the Intellectual Property Section (1996-1998); Member
of the Ethics Committee (1991-1995); Chairman of the New Lawyers Committee (1989-
1990).
District of Columbia Bar Association, Member (1996 to present).
Member of the Board of Bar Examiners of the Delaware Supreme Court (by appointment of the
4
17
Delaware Supreme Court; 2001 to 2002); Member of the Administrative Committee of the
Board (200 1 to 2002); Secretary of the Board (by appointment of the Delaware Supreme Court;
1997); Assistant Secretary of the Board (by appointment of the Delaware Supreme Court; 1995-
96); Associate Member of the Board (by appointment of the Delaware Supreme Court 1 993-94).
Member of the Board of Directors of the Delaware Valley Chapter of the American
Corporate Counsel Association (1999 to 2002), First Vice President (2002), Second Vice
President (2001).
Delaware Chapter of the Federal Bar Association (1996 to 2002), Steering Committee
Member (1996 to 1997); Treasurer (1997).
Member of the Republican National Lawyers Association (2002)
Member of the American Intellectual Property Law Association (mid 90s to 2002).
Member of the Computer Law Association (mid 90s to 2002).
Member of the Advisory Committee for the United States District Court for the District of
Delaware (by appointment of the District Court; 1995 to 1999).
Member of the Intellectual Property Advisory Committee of the United States District Court for
the District of Delawar e (by appointment of the District Court; 1997 to 1998).
Member of the Federalist Society (1995 to 1997).
Member of the Board of Directors of Community Legal Aid Society, Inc., 100 West 10 th
Street, Suite 801, Wilmington, DE 19801 (1994 to 1997).
Member of the District of Delaware Advisory Group under the Civil Justice Reform Act of 1 990
(by appointment of the District Court; 1995); Alternate Member (1990 to 1994).
Member of the Criminal Justice Act Blue Ribbon Panel of the United States District Court for
the District of Delaware (by appointment of the District Court; 1 993 to 1 998).
Member of the American Bar Association (1984 to early 90s).
Member, Judicial Conference of the United States Ad Hoc Committee on the American Inns of
Court (by appointment of the Chief Justice of the United States; 1 983 to 1 985).
Student Member of the Charles Fahy Chapter of the American Inns of Court (1983 to 1984)
5
18
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
The Church of Jesus Christ of Latter-Day Saints, Member, have been a full-time missionary
(Japan, 1977-78) and held various responsibilities in lay leadership.
Boy Scouts of America, Volunteer Merit Badge Counselor and Troop Committee Member (mid
1980's to present).
St. Thomas More Society, Member (late 1980's to present).
Lincoln Club of Delaware, Member (late 1980's to present).
Blood Bank of Delaware, Member (mid 1980's to present).
11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
Delaware Supreme Court (1984 to present)
United States District Court for the District of Delaware (1985 to present)
United States Court of Appeals for the Third Circuit (1988 to present)
United States Supreme Court (1994 to present)
United States Court of Appeals for the Federal Circuit (1995 to present)
District of Columbia Court of Appeals (1996 to present)
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
Speech to Political Science Honor Society (March 26-30, 2003, Salt Lake City, UT), “Courage
of Self-Restraint,” Meridian Magazine
Speech to DuPont IP Seminar (Oct. 27, 2003, Wilmington, DE), on appellate deference to trial
court patent claim construction;
Speech to Temple University Symposium (Feb. 24, 2005, Philadelphia, PA), “On Exclusive
Rights”;
6
19
Speech to Philadelphia Intellectual Property Law Assoc. (Oct. 20, 2005 , Philadelphia, PA) (also
basis of remarks at Thomas Jefferson Law School (Nov. 4, 2005) and ABA Intellectual Property
Law Section Winter meeting (Jan. 5, 2006)), “It’s the Same Thing”;
Speech to Utah State Bar Assoc. Intellectual Property Section (March 24, 2006, Salt Lake City,
UT) (also basis of remarks to Japan IP Judges Seminar (Apr. 2 1 , 2006, and Waseda University
Program on Claim Construction (Apr. 24, 2006)), “Anticipating Markman: Tips for Patent
Prosecutors and Litigators”;
Author, “Electronic Service of Process: Coming Soon to a Lawsuit Near You?” Corporate
Counsel magazine, pg. A20 (October 1999)
Author, “The Online Copyright Infringement Liability Limitation Act: A New Tool to Preserve
Copyright Protection in Cyberspace,” The Metropolitan Corporate Counsel newspaper, pg. 1 8
(January 1999)
Author, "Motions Practice And Summary Disposition Of Appeal," Chapter 9, Vol. I, Federal
Appellate Procedure. Third Circuit (Lawyers Cooperative Publishing 1996)
Co-Author, "Motions For Achieving Adjudication Without Trial," Chapter 16, Vol. Ill, Federal
Civil Procedure Before Trial. Third Circuit (Lawyers Cooperative Publishing 1 996)
Co-Author, "Legal Mentoring," Chapter 8, The Delaware Bar in the Twentieth Century
(Delaware State Bar Association 1994)
Author of Note, "The Extent of Independent Presidential Authority to Conduct Foreign
Intelligence Activities," 72 Geo.L.J. 1855 (1984)
I have been a speaker or panelist at professional conferences and classes (e.g., on intellectual
property issues, civil procedure, advocacy, and professional responsibility) over the years, but I
am not aware of any of the speeches or remarks having been reproduced in print or on
videotape, except that I have been told my recent participation as a panelist at the May 1 8, 2006
judicial conference of the United States Court of Appeals for the Federal Circuit was recorded
and broadcast on C-Span. I do not have a copy of that recording.
13. Health : What is the present state of your health? List the date of your last physical
examination.
I am in excellent health. I underwent a physical examination on June 8, 2006.
7
20
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
United States District Judge for the District of Delaware, appointed Nov. 27, 2002. The
District Court is a federal trial court of general jurisdiction.
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
a) citations for the ten (10) most significant opinions you have written;
1. Abbott Labs. v. TevaPharm. USA, /nc.,No. Civ.A.02-1512, 2006 WL 1460077 (D.
Del. May 26, 2006).
The main issue in this opinion is whether a pharmaceutical manufacturer can be subjected to
antitrust scrutiny for changing a drug’s formulation and thereby allegedly preventing generic
substitution for the drug under the framework of the Hatch-Waxman Act. I held that it can,
and denied the counterclaim-defendants’ motion to dismiss.
2. IT Litig. Trust v. D ’Aniello (In re IT Group Inc.), No. Civ.A.04-1268, 2005 WL
3050611 (D. Del. Nov. 15, 2005).
The plaintiff in this case alleges breaches of fiduciary duties by corporate directors and
officers. While I was required to follow Third Circuit precedent that such allegations made
in federal court must only satisfy federal notice pleading standards, I noted my concern over
the disparity I perceived developing between state and federal pleading standards and over a
consequent weakening of the business judgment rule.
3. VFB LLC v. Campbell Soup Co., No. Civ.A.02-137, 2005 WL 2234606 (D. Del.
Sept. 13,2005).
In these post-trial findings of fact and conclusions of law, I determined that the defendant
was not liable for alleged fraudulent transfers or breaches of fiduciary duties. Among other
things, I found that plaintiff s predecessor in interest received reasonably equivalent value
for the transfers, and that the predecessor was not inadequately capitalized or insolvent at the
time of the transfers.
4. United States v. Leary, 378 F. Supp. 2d 482 (D. Del. 2005).
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21
In this arson case, I denied the defendants’ post-conviction motions for a new trial. Newly
discovered evidence that was relevant only to the extent that it might impeach one of the
government’s witnesses did not make it likely that a jury would have acquitted the
defendants, nor did the government withhold exculpatory evidence. Finally, the
government’s refusal to grant immunity to a defense witness did not lead to distortions of the
factual record requiring a new trial.
5. Cumy-Cramer v. Ursuline Acad, of Wilmington, Del, Inc., 344 F. Supp. 2d 923 (D.
Del, 2004), aff’d, __ F.3d 04-4628 (3d Cir. June 7, 2006).
In this case, a former teacher brought employment discrimination claims against a Catholic
school that fired her because of her public disagreement with the church’s opposition to
abortion. I dismissed her claims because I determined that the application of Title VII would
raise substantial questions concerning the Free Exercise and Establishment Clauses of the
First Amendment and that Congress did not intend for the statute to be so applied. The Third
Circuit affirmed, in part on the basis I had relied upon and in part on other grounds.
6. United States v. Gordon, 334 F. Supp. 2d 581 (D. Del. 2004).
I denied a motion for admission pro hac vice in a public corruption prosecution, holding that
the attorney who sought admission had a conflict of interest. Specifically, the attorney had
represented New Castle County in connection with a grand jury investigation, before
attempting to represent one of the defendants who was indicted in that investigation. The
attorney argued that his representation of the County had been limited solely to document
gathering, while the United States argued that the County may have been a victim of the
crime and that the attorney’s representation was not so limited. I found that the
representation of the County and the proposed representation of the defendant were
substantially related and that the interests of the County and the defendant were materially
adverse.
7. United States v. Freeman, 325 F. Supp. 2d 463 (D. Del. 2004).
The defendant in this criminal case was detained by police under circumstances that rose to
the level of police custody. While he was in custody, he was interrogated without receiving
Miranda warnings, and his statements were therefore suppressed.
8. United States v. Delaware, No. Civ.A.01-020, 2004 WL 609331 (D. Del. Mar. 22,
2004).
The United States brought this employment discrimination action against the State of
Delaware, challenging the test used to measure literacy in applicants for the job of Trooper
with the Delaware State Police. While I found that literacy is an essential requirement of the
job and is job-related for the position in question, I further found that the predictive power of
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the test was weak. Furthermore, I found that the State set the score for a passing grade too
high and failed to demonstrate that those who scored below the cutoff score would be
unlikely to be able to do the job. Because I had held in a previous decision that the test had
an adverse impact on African American applicants for the position of Delaware State Police
Trooper (see case #10 below), I found that the State had failed to meet its burden of showing
that the test met Title VII requirements.
9. Rhodia Chimie v. PPG Indus., Inc., 303 F. Supp. 2d 502 (D. Del. 2004), affd in
part and rev 'd in part, 402 F,3d 1371 (Fed. Cir. 2005).
In this patent infringement action, I granted the defendant’s motion for summary
judgment of no literal patent infringement, and found that the plaintiff was estopped from
asserting infringement under the doctrine of equivalents. The plaintiff in this case failed
to timely submit any testing that showed that the defendant’s product met the limitations
of the patent claims as I had construed them. Additionally, I held that the plaintiff was
estopped from asserting infringement under the doctrine of equivalents because of
statements it made during the prosecution of the patent. The Federal Circuit affirmed my
rulings, except for my grant of summary judgment of noninfringement as to one of the
defendant’s products, because the court held there was a genuine issue of material fact as
to whether that product infringed the patent.
10. United States v. Delaware, No. Civ.A.01-020, 2003 WL 21183641 (D. Del. May
20, 2003).
This is the employment discrimination case noted above (supra, case #8), in which the
United States sued the State of Delaware. I granted partial summary judgment to the
United States, holding that it had demonstrated that, as compared to whites, African
Americans were disproportionately screened out of the pool of applicants for the job of
Trooper with the Delaware State Police.
b) Decisions reversed:
1 . Reyes v. Freebery, No. Civ. A.02- 1 283, 2004 WL 1 737683 (D. Del. July 30,
2004).
One of the individual defendants in this civil case was also a defendant in a criminal case.
I stayed the proceedings in the civil case after finding that there was at least some
overlap between the criminal and civil cases, and that a stay would help protect the
defendant’s Fifth Amendment right against self-incrimination, that the defendant was
already under indictment, that the only prejudice to the plaintiffs was the delay in
pursuing their suit, that the defendants had explicitly requested the stay, that the stay
would promote judicial efficiency and the interests of justice, and that the stay was in the
public interest. I had also previously entered an order regarding the parties’ discussing
the case with the media.
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Reyes v. Freeberry, 141 Fed. Appx. 49 (3d Cir. 2005).
On appeal, the third Circuit concluded that it lacked jurisdiction to review the stay on
appeal. However, that Court also found that it needed clarification of the protective order
to determine whether it had jurisdiction to review that order. The Court remanded the
decision for clarification of the scope of the restrictions regarding the parties’ contact
with the media.
Reyes v. Freeberry , No. Civ.A.02-1283, 2005 WL 3560724 (D. Del. Dec. 29,
2005).
On remand, I outlined the documents and communications subject to the parties’
stipulated protective order and the reasons for the restrictions on confidential
information.
Reyes v. Freebery, No. 04-3400, WL (3d Cir., July 10, 2006).
On appeal, the Third Circuit dismissed the plaintiffs' appeal with respect both to my order
denying their motion to void the protective order and to my order that they not discuss
confidential information with the press. The Court remanded the case for me to consider
whether my order denying unsealing of the summary judgment record should be
reevaluated in light of the continuing stay of civil proceedings while criminal charges are
pending against one of the defendants.
2. NMSBPCSLDHB L. P. v. Integrated Telecom Express, Inc. (In re Integrated
Telecom Express, Inc.), No. Civ.A.03-236, 2004 WL 1136547 (D. Del. May 19,
2004).
In this bankruptcy appeal, I affirmed the decision of the Bankruptcy Court that the debtor
filed its bankruptcy petition in good faith. The Bankruptcy Court found as a matter of
fact that the debtor, while not insolvent, was in financial distress, and ruled that the
debtor’s desire to cap its landlord’s damage claim did not establish bad faith. I held that
the Bankruptcy Court did not abuse its discretion in making those determinations.
NMSBPCSLDHB L. P. v. Integrated Telecom Express, Inc. (In re Integrated
Telecom Express, Inc.), 384 F.3d 108 (3d Cir. 2004).
The Third Circuit held that the conclusion that the debtor was in financial distress was
incorrect in the circumstances of this case. While the desire to cap the landlord’s
damages did not establish bad faith, the circumstances did not show good faith. Thus, the
Third Circuit ruled that the debtor failed to carry its burden of showing good faith, and
the holding to the contrary was reversed.
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NMSBPCSLDHB L. P. v, Integrated Telecom Express, Inc. (In re Integrated
Telecom Express, Inc.), 389 F.3d 423 (3d Cir. 2004).
The Third Circuit denied a petition for rehearing en banc. Two judges expressed concern
that the discussion concerning good faith would be applied beyond the unusual facts of
the case.
3. Stanziale v. Nachtomi, 330 B.R. 56 (D. Del. 2004).
I held that the complaint in a bankruptcy adversary proceeding failed to allege, with the
particularity required by Delaware corporate law, breaches of fiduciary duty by corporate
officers and directors. In Delaware, the business judgment rule requires that the plaintiff
plead facts with particularity to show that the defendants’ decisions were not a valid
business judgment. I ruled that the plaintiff failed to meet that standard, and therefore I
dismissed the claims.
Stanziale v. Nachtomi (In re Tower Air, Inc.), 416 F.3d 229 (3d Cir. 2005).
The Court of Appeals held that the heightened pleading requirement applied by the
Delaware Court of Chancery does not apply in federal court. Since some of the
plaintiffs claims met the more lenient notice pleading standards set forth in the Federal
Rules of Civil Procedure, the dismissal was reversed as to those claims.
4. Messina v. E.I. du Pont de Nemours & Co., 308 F. Supp. 2d 491 (D. Del. 2004).
This was a reverse race discrimination case, in which the plaintiff, who was Caucasian,
alleged that his employer treated him differently than it treated similarly situated minority
employees. To establish a prima facie case, the plaintiff was required to show that his
employer treated him less favorably based on his race. I found that neither of the
employees whom the plaintiff alleged were treated more favorably were similarly
situated to him, and thus that he had failed to establish a prima facie case of
discrimination. I therefore granted summary judgment to the defendant employer.
Messina v. E.I. du Pont de Nemours & Co., 141 Fed. Appx. 57 (3d Cir. 2005).
Although the Third Circuit affirmed my ruling, it did so on alternate grounds, finding that
the plaintiff had established a prima facie case of discrimination because the burden at
that stage of the analysis is relatively low, and the totality of the circumstances would
allow a reasonable fact-finder to determine that the plaintiff was treated less favorably
because of his race. However, the Court found that the plaintiff could not show that the
employer’s legitimate non-discriminatory reason for firing him was a pretext for
discrimination, and thus that summary judgment was proper.
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5. Couden v. Duffey, 305 F. Supp. 2d 379 (D. Del. 2004).
This is a civil rights case in which the plaintiffs, a mother and her children, alleged that
federal and state police officers violated the Fourth Amendment protections against
unlawful searches and seizures and against excessive force. I concluded that the officers’
mistaken belief that the plaintiffs were involved in a burglary, and the subsequent use of
force, were such that qualified immunity was appropriate. On the basis of that and
related rulings, I granted summary judgment for the defendants.
Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006).
The Third Circuit noted factual disputes that it concluded made summary judgment
improper. The Court held, over a dissent, that the officers were not protected by
qualified immunity for their actions after mistakenly believing that a crime was
occurring.
6. Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., No. Civ.A.00-1 73, 2004
WL 202900 (D. Del. Jan. 29, 2004).
In this employment discrimination action, I held that, because the plaintiff had
voluntarily resigned, he could not prevail unless he could establish that he was
constructively discharged. I granted the defendants’ Motion for Judgment on the
Pleadings because I held that, although the plaintiffs contract was not renewed, plaintiff
could not establish a constructive discharge.
Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., 163 Fed. Appx. 157 (3d
Cir. 2006).
The Third Circuit held that it was not necessary to establish that the plaintiff was
constructively discharged, as the failure to renew his employment contract was actionable
as an adverse employment action.
7. Rhodia Chimie v. PPG Indus., Inc., 303 F. Supp. 2d 502 (D. Del. 2004).
In this patent infringement action, I granted the defendant’s motion for summary
judgment of no literal patent infringement, and found that the plaintiff was estopped from
asserting infringement under the doctrine of equivalents. The plaintiff in this case failed
to timely submit any testing that showed that the defendant’s product met the limitations
of the patent claims as I had construed them. Additionally, I held that the plaintiff was
estopped from asserting infringement under the doctrine of equivalents because of
statements it made during the prosecution of the patent.
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Rhodia Chimie v. PPG Indus., Inc., 402 F.3d 1371 (Fed. Cir. 2005).
The Federal Circuit affirmed my rulings, except for my grant of summary judgment of
noninfringement as to one of the defendant’s products, because the court held there was a
genuine issue of material fact as to whether that product infringed the patent.
8. Harris-Thomas v. Christina Sch. Dist., No. Civ.A.02-253, 2003 WL 22999541
(D. Del. Dec. 18, 2003).
In this case, the plaintiff made civil rights claims on behalf of herself and her son, based
on how the son was treated by the school district. I granted summary judgment for the
school district, because the plaintiff failed to demonstrate racial discrimination, denial of
procedural due process rights, or intentional infliction of emotional distress.
Harris-Thomas v. Christina Sch. Dist., 145 Fed. Appx. 714 (3d Cir. 2005).
The Third Circuit vacated the judgment as to the claims made on behalf of the son,
because the mother was not entitled to represent her son’s interests. The judgment was
affirmed as to the mother’s claims.
9. Commissariat a l 'Energie Atomique v. Chi Mei Optoelecs. Corp., 293 F. Supp. 2d
423 (D. Del. 2003).
In this patent infringement case, I granted the defendant’s motion to dismiss for lack of
personal jurisdiction, and denied the plaintiffs request for jurisdictional discovery. I
granted the motion because the plaintiff presented no evidence that the defendant made
any pre-lawsuit sales in Delaware.
Commissariat a l 'Energie Atomique v. Chi Mei Optoelecs. Corp., 293 F. Supp. 2d
430 (D. Del. 2003).
On the plaintiffs motion for reconsideration, I found that jurisdictional discovery was
not warranted, as the plaintiff had failed to preserve its position that jurisdictional
discovery was necessary, prior to my decision on the motion to dismiss.
Commissariat a l 'Energie Atomique v. Chi Mei Optoelecs. Corp., 395 F.3d 1315
(Fed. Cir. 2005).
The Federal Circuit, on appeal, held that it was error to deny jurisdictional discovery.
That Court held that the plaintiff had adequately preserved its position on jurisdictional
discovery, because no formal discovery request is required to preserve such a position.
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1 0. Lui v. Comm 'n on Adult Entm 't Establishments of the State of Del. ,213 F.R.D.
166 (D. Del. 2003).
In this case, the plaintiff asserted the unconstitutionality of a state law that formed the
basis of an ongoing criminal prosecution against him. I held that the federal court should
abstain pursuant to the Younger doctrine, because the criminal prosecution was pending
in state court, important state interests were involved, and the plaintiff would be able to
raise his constitutional concerns in the state proceeding.
Lui v. Comm'n on Adult Entm’t Establishments of the State of Del., 369 F.3d 319
(3d Cir. 2004).
The Third Circuit affirmed my ruling as to Younger abstention, but held that my order
was not correctly implemented, in that jurisdiction was improperly retained over one of
the plaintiffs claims. The retention of jurisdiction was reversed, and the case was
remanded with instructions to dismiss with prejudice.
11. Cantor v. Perelman, 235 F. Supp. 2d 377 (D. Del. 2002).
This opinion was written by Magistrate Judge Mary Pat Thynge, and I adopted Judge
Thynge’s recommendations in atl respects and issued an order granting summary
judgment in part for the defendants. Judge Thynge determined that Delaware law
required the plaintiffs to demonstrate that they were harmed by the defendants’ alleged
breaches of fiduciary duty and that the plaintiffs had failed to make that showing.
Cantor v. Perelman, 414 F.3d 430 (3d Cir. 2005).
The Third Circuit reversed- in-part the grant of summary judgment. The Court held that it
was not necessary for the plaintiffs to show that the defendants caused the corporate
entity damage, and that, in any event, a genuine issue of fact remained as to whether such
harm had occurred.
c) Citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions.
1 . Sokolove v. City of Rehoboth Beach, No. Civ.A.05-5 1 4, 2005 WL 1 800007 (D.
Del. July 28, 2005).
The plaintiffs in this case challenged the constitutionality under the First Amendment of
a city ordinance prohibiting the placement of signs on public property. In considering the
plaintiffs’ motion for a preliminary injunction, I concluded that, on the preliminary
record, they had failed to show a likelihood of success as to the facial unconstitutionality
of the ordinance and that, while they showed a likelihood of success in their claim that
the ordinance was unconstitutionally applied, the specifically requested injunctive relief
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was not an appropriate remedy. Therefore, I denied the motion for preliminary injunctive
relief.
2. Watkins v. New Castle County, 374 F. Supp. 2d 379 (D. Del. 2005).
This civil rights case arose after a drug-intoxicated arrestee died following a struggle
with police officers that occurred in the course of his arrest. Genuine issues of material
fact remained as to whether the municipality had failed to train its officers about drug
induced excited delirium and the use of prone restraint techniques, as to whether the
officers used excessive force in violation of the Fourth Amendment, as to whether the
officers failed to provide medical care in violation of the Fourteenth Amendment, and as
to whether qualified immunity protected the officers from liability because they
reasonably believed that their conduct was lawful. Thus, summary judgment was denied.
3. Curay-Cramer v. Ursuline Acad, of Wilmington, Del., Inc. , 344 F. Supp. 2d 923
(D. Del. 2004).
In this case, a former teacher brought employment discrimination claims against a
Catholic school that fired her because of her public disagreement with the church’s
opposition to abortion. I dismissed her claims because I determined that the application
of Title VII would raise substantial questions concerning the Free Exercise and
Establishment Clauses of the First Amendment and that Congress did not intend for the
statute to be so applied.
Curay-Cramer v. Ursuline Acad, of Wilmington, Del., Inc., F.3d , 04-4628
(3d Cir. June 7, 2006).
The Third Circuit affirmed, in part on the basis I had relied upon and in part on other
grounds.
4. Maloney v. Gordon, 328 F. Supp. 2d 508 (D. Del. 2004); Reyes v. Freebery, No.
Civ.A.02-1283, 2004 WL 1737683 (D. Del. July 30, 2004).
In these employment discrimination actions, former County employees sued their former
employer, New Castle County, as well as former County officials. Those former County
officials had also been indicted in a criminal case involving similar issues. I stayed both
cases pending the outcome of the criminal cases, at least in part to protect the Fifth
Amendment rights of the defendants to be flee from self-incrimination.
5. Verizon Del., Inc. v. AT & T Communications of Del., LLC, 326 F. Supp. 2d 574
(D. Del. 2004).
This case involved a challenge to the state public service commission’s ruling on a
telephone interconnection agreement. The commission asserted that it was immune
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under the Eleventh Amendment from challenges brought in federal court. I concluded,
based on Third Circuit precedent, that by participating in the federal regulatory scheme
set forth in the Telecommunications Act of 1996, the state commission submitted itself to
review in federal court. Considerations of federalism were insufficient in such a case to
overcome the clear Congressional intent to provide a federal forum for challenges
brought pursuant to the federal scheme. Thus, the federal lawsuit was allowed to
proceed.
6. Couden v. Duffey, 305 F. Supp. 2d 379 (D. Del. 2004).
This is a civil rights case in which the plaintiffs, a mother and her children, alleged that
federal and state police officers violated the Fourth Amendment protections against
unlawful searches and seizures and against excessive force. I concluded that the officers’
mistaken belief that the plaintiffs were involved in a burglary, and the subsequent use of
force, were such that qualified immunity was appropriate. On the basis of that and
related rulings, I granted summary judgment for the defendants.
Couden v. Duffy , 446 F.3d 483 (3d Cir. 2006).
The Third Circuit pointed to factual disputes that it concluded made summary judgment
improper. The Court held, over a dissent, that the officers were not protected by
qualified immunity for their actions after mistakenly believing that a crime was
occurring.
7. CSX Transp., Inc. v. Del. Dep ’t of Transp., No. Civ.A.03-756, 2003 WL
22953195 (D. Del. Dec. 12, 2003).
The plaintiff, a rail carrier, challenged the statutory authority of the Delaware Department
of Transportation to cause the plaintiff to repair or replace certain railroad bridges. The
plaintiff argued that, pursuant to the Supremacy Clause, the Department was preempted
by federal law from enforcing the relevant state statute. I granted the Department’s
motion to dismiss, because state participation in the Federal-Aid Highway program is
optional and, therefore, Congress did not intend to completely preempt state regulation in
the circumstances of this case.
8. Lui v. Comm 'n on Adult Entm 't Establishments of the State of Del., 213 F.R.D.
166 (D. Del. 2003).
In this case, the plaintiff asserted the unconstitutionality of a state law that formed the
basis of an ongoing criminal prosecution against him. I held that the federal court should
abstain pursuant to the Younger doctrine, because the criminal prosecution was pending
in state court, important state interests were involved, and the plaintiff would be able to
raise his constitutional concerns in the state proceeding.
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Lui v. Comm’n on Adult Entm’t Establishments of the State of Del, 369 F.3d 319
(3d Cir. 2004).
The Third Circuit affirmed my ruling as to Younger abstention, but held that my order
was not correctly implemented, in that jurisdiction was improperly retained over one of
the plaintiffs claims. The retention of jurisdiction was reversed, and the case was
remanded with instructions to dismiss with prejudice.
In addition to the foregoing cases, I include one decision in a prisoner civil rights case
and one on a petition for habeas corpus. Such cases are significant to the individuals
involved and often deal with constitutional issues. However, they arise with such
frequency that it is impractical to list them all, so one of each type is provided by way of
example.
1 . Brown v. George , No. Civ. A.02- 1 686, 2005 WL 227 1 922 (D. Del. Sept 1 9, 2005)
In this Section 1983 case, the plaintiff, a former inmate in the Delaware correctional
system, alleged that prison guards used excessive force in violation of the Eighth and
Fourteenth Amendments. I granted summary judgment in part, based on the Eleventh
Amendment immunity of the state, and denied it in part. The case settled following trial.
2. Graham v. Brooks, 342 F. Supp. 2d 256 (D. Del. 2004).
The petitioner in this habeas case contended, among other things, that his Eighth
Amendment rights had been violated and that he was denied effective assistance of
counsel. I determined that his petition had to be dismissed.
16. Public Office : State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
Assistant United States Attorney for the District of Delaware, appointed (1987 to 1992).
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
Law Clerk to the Honorable James L. Latclium, United
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States District Court for the District of Delaware, 1984-85.
2. whether you practiced alone, and if so, the addresses
and dates;
I did not practice alone.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you
have been connected, and the nature of your connection
with each;
Associate (1985-87) with Potter Anderson & Corroon, 1313 North Market
Street, Wilmington DE 19801
Assistant United States Attorney (1987-92), U.S. Attorney’s Office for the
District of Delaware, 1007 Orange Street, Suite 700, Wilmington, DE
19801
Associate (1992-93) and Partner (1994-97) with Morris James Hitchens &
Williams, 222 Delaware Avenue, 10 th Floor, Wilmington, DE 19801
Vice President & General Counsel (1998- 2002) with Corporation Service
Company, 271 1 Centerville Road, Suite 400, Wilmington, DE 19808
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
From 1984 to 1985, 1 served as a law clerk to the Honorable James L.
Latchum, a judge on the United States District Court for the District of
Delaware. Following my clerkship with Judge Latchum, 1 worked for
approximately two years (1985-87) with the law firm of Potter Anderson
& Corroon, 1313 North Market Street, Wilmington, DE 19801, as an
associate assigned mainly to corporate and commercial litigation matters.
I was then offered the opportunity to serve as an Assistant United States
Attorney for the District of Delaware (1987-92). The U.S. Attorney’s
Office is currently located at 1007 Orange Street, Suite 700, Wilmington,
DE 19801. I became the lead attorney in the office on civil matters, as
well as serving as lead counsel and co-counsel on a variety of criminal
cases. Following my five years in the U.S. Attorney’s Office, I became an
associate (1992-93) and then a partner in the law firm of Morris James
Hitchens & Williams (1994-97), 222 Delaware Avenue, 10 th Floor,
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c.
Wilmington, DE 19801, handling mainly intellectual property, corporate,
and commercial litigation. At the end of 1997, 1 accepted an offer to join
the senior management team of Corporation Service Company (“CSC”),
as a Vice President and the General Counsel, beginning in 1998. CSC,
located at 271 1 Centerville Road, Suite 400, Wilmington, Delaware
1 9808, is a national provider of registered agent, public records filing and
retrieval, corporate and intellectual property information management, and
litigation information management services. As General Counsel, I was
responsible for all of tire legal affairs of the company and for managing a
legal department with eight attorneys, including me, and two
paraprofessionals. I supervised dispute resolution, risk management,
certain labor and employment issues, contract negotiation and review,
intellectual property, and real estate matters, as well as participating in the
planning and execution of business acquisitions and other strategic
development in the company. In 2002, 1 was nominated, confirmed, and
sworn in as a United States District Judge for the District of Delaware, in
which position I handle a wide variety of civil and criminal cases.
2, Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
In private practice, my clients were typically business entities involved in
patent and related disputes in the U.S. District Court for the District of
Delaware. To a lesser degree, I handled corporate disputes in Delaware’s
Court of Chancery and commercial disputes in Delaware’s Superior Court
or in adversary proceedings related to bankruptcies pending in the
Bankruptcy Court in Delaware. I also represented individual defendants,
including directors and officers of corporations in civil cases and indigent
individuals in federal criminal and post-conviction relief proceedings.
As an Assistant United States Attorney, my clients in civil cases included
various agencies of the United States government involved in a broad
array of legal disputes, from basic torts to complex federal regulatory and
contractual problems. In criminal cases, I managed grand jury
investigations and prosecuted cases involving matters as diverse as drug
trafficking, environmental crime, extortion, bank robbery, firearms
violations, tax violations, and complex fraud.
1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
As a law clerk (1984-85), I was in court daily. As a new associate (1985-
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87), I appeared infrequently in court and then generally in a supporting
role. During my five years as an Assistant United States Attorney (1987-
92), I appeared in federal court nearly every day for some purpose:
arguing motions, handling initial appearances or arraignments, presenting
evidence to grand juries, representing the U.S. in various pretrial hearings,
trying cases, or participating in case conferences related to civil or
criminal matters. During the five and a half years I worked at Morris
James Hitchens & Williams (1992-97), I regularly appeared in court for
mediations, case conferences, arguments, Markman hearings, and,
occasionally, trial. As General Counsel for CSC (1998-2002), I appeared
in court sporadically in relation to disputes involving the company, and,
on pro bono matters. I twice argued constitutional issues in a death
penalty habeas matter before the United States Court of Appeals for the
Third Circuit, and appeared in Delaware’s Family Court as an attorney
guardian ad litem for at-risk children.
2. What percentage of these appearances was in:
(a) federal courts: 95%
(b) state courts of record: 5%
(c) other courts:
3. What percentage of your litigation was:
(a) civil: 70%
(b) criminal: 30%
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
1 estimate that I tried to conclusion 25 to 30 cases. To the best of my
recollection, in all but two of those cases, I was either sole counsel (six or
seven cases), sole lead counsel (another two or three cases), or (in all the
rest) co-lead counsel, sharing equally with a partner or another Assistant
United States Attorney in the responsibility to develop the case, prepare
the witnesses, handle the examination and cross-examination, and present
either the opening statement or the closing argument or both.
5. What percentage of these trials was:
(a) jury: 75%
(b) non-jury: 25%
18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
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date if unreported. Give a capsule summary of the substance of each case. Identify
the party' or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
a. Hameen v. Delaware . 212 F.3d 226 (3d Cir. 2000), cert, denied , 532 U.S. 924
(200t)(opinion below at Ferguson, a/k/a Hameen v. Delaware . C.A. No. 96-306-LON, 1996 WL
1056727 (D.Del. Dec. 13, 1996)).
In the District Court, the case was before Judge Joseph J. Longobardi; in the Court of
Appeals, it was first before Judges Mannsman, Greenberg, and McKee and subsequently before
Judges Greenberg, McKee, and Rendell. My appointed co-counsel was John S. Malik, Esquire,
100 East 14 th Street, Wilmington, DE 19801, Tel. 302-427-2247. Not court appointed but
working closely with us on the case were former colleagues at Morris James who have since
moved to other positions: The Honorable Joseph R. Slights, III, Superior Court of the State of
Delaware, New Castle County Courthouse, 500 North King Street, Wilmington, DE 19801, Tel.
302-255-0656, and Ricardo Palacio, Esquire, Ashby & Geddes, 222 Delaware Avenue, 17 th
Floor, Wilmington, DE 19801, Tel. 302-654-1888. Opposing counsel was Loren C. Meyers,
Chief of Appeals Division, Delaware Department of Justice, Carvel State Office Bldg, 820 N.
French Street, Wilmington, DE 19801, Tel. 302-577-8500.
This is the death penalty habeas case to which I referred in answering question 17c.;'
supra. When John Malik and I were appointed as co-counsel for Mr. Hameen, we reviewed the
issues and agreed to divide them and focus our separate efforts on specific issues within the case.
We agreed that I would be responsible for the lead constitutional argument in the case, which
asserted that Delaware’s retroactive application of its revised death penalty statute violated the
ex post facto clause of the Constitution. While the overall effort put into the case was
collaborative and included excellent work by Judge Slights and Rick Palacio, with occasional
support by other colleagues at Morris James, I did have the opportunity to take the lead in
briefing that issue and arguing it at the various levels at which we pursued relief. We were not
successful in our efforts to obtain post-conviction relief, and Mr. Hameen was executed on May
25, 2001. The case was highly significant to me because it literally involved a question of life or
death, it had at its heart a fundamental constitutional issue, and it involved the then-newly
emerging standards for habeas corpus review under the Antiterrorism and Effective Death
Penalty Act.
b. United States v. Morales . 861 F.2d 396 (3d Cir. 1 988)
The case in the District Court was before Judge Murray M. Schartz. It was reviewed on
appeal by Judges Hutchinson, Seitz, and Sloviter. I was the sole attorney for the United States
on the case. (It should be noted, of course, that even in cases like this, where I was the only
22
35
Assistant United States Attorney assigned to the matter, the attorneys in the office regularly
discussed our cases and shared counsel and lent other support as needed.) Opposing counsel was
Joel DeFabio, then of Maltnan, DeFabio & Lapidus, 2121 Ponce de Leon Blvd., Coral Gables,
FL 33 134, Tel. Number unknown.
This was a drug trafficking case in which the District Court ruled the cocaine seized
during a traffic stop on 1-95 should be suppressed as evidence against one of the defendants
because it was seized during a warrantless search as to which that defendant had not consented.
I was responsible for the entire case, including the suppression hearing and briefing in the
District Court and the briefing and argument of the matter on appeal. It was a significant case
because it vindicated on appeal the propriety of the search and seizure and allowed us to move
forward with a successful prosecution of both defendants.
c. CFMT v. Steag Microtech. Inc. . 965 F. Supp. 561 (D.Del. 1997).
The case in the District Court was before Judge Joseph J. Longobardi. It was decided in
the first instance by Magistrate Judge Mary Pat Trostle (now Mary Pat Thynge), who issued a
report and recommendation. I was the lead counsel for Steag Microtech GmbH Donaueschingen
(“SMTD”), a German entity related to the lead defendant, and I coordinated my efforts with
those of the attorneys for the lead defendant, Steag Microtech, Inc. (“SMTI”). The Attorneys for
SMTI were Arthur G, Connolly, Jr., Esq., of Connolly Bove Lodge & Hutz, 1007 Orange Street,
Wilmington, DE 19801, Tel. 302-888-6212; G. Thomas Delahunty, Esq., formerly of Brooks
Haidt Haffner & Delahunty, last known address 32 Harvard Street, Garden City, NY 11530, Tel.
unknown, and George F. Stradar, Jr., Esq., Northrop, Stradar & Glenn, P.C., One Corwin Court,
P.O. Box 2395, Newburgh, NY 12550, Tel. 914-561-8000. Opposing counsel were Edward B.
Maxwell, 2 nd , Esq., and Josy W. Ingersoll of Young Conaway Stargatt & Taylor, The
Brandywine Building, 17 ,h Floor, 1000 West Street, Wilmington, DE 19801, Tel. 302-571-6600,
and Thomas B. Kenworthy, Esq., Morgan Lewis & Bockius, 2000 One Logan Square,
Philadelphia, PA 19103, Tel. 215-963-5000.
This was a patent case in which my client prevailed on a motion to dismiss for lack of
personal jurisdiction and which involved the interpretation of a then-relatively new amendment
to Fed.R.Civ.P. 4, pertaining to service of process and the exercise of personal jurisdiction. I
dealt with SMTD personnel in Germany on the discovery conducted regarding SMTD’s contacts
with the United States. With the assistance of an associate, I researched the relevant law, filed
and briefed the motion to dismiss, and made the case for dismissal both to the Magistrate Judge
and to the District Judge who reviewed the case and rendered an opinion in our favor. This case
was significant to me because it involved a rule which, though technical in nature, nevertheless
bore on the fundamental constitutional question of when it is appropriate for a United States
court to exercise jurisdiction over a foreign citizen, and it was a favorable result in a hard-fought
case.
d. United States v. Skerianz, et al. . Criminal Action No. 89-15-LON.
The case in the District Court was before Judge Joseph J. Longobardi. On appeal, in
which I was not substantially involved, it was before Judges Hutchinson, Nygaard, and Rosenn
and is reported as United States v. Inigo , at 925 F.2d 641 (3d Cir. 1991). I was co-counsel with
my U.S. Attorney’s Office colleague Edmond (“Corky”) Falgowski, 1007 Orange Street, Suite
23
36
700, Wilmington, DE 19801, Tel. 302-573-6277. Opposing counsel were, for defendant Bruno
Skerianz, Richard A. Zappa, Esq., and Melanie K. Sharp, Esq. of Young Conaway Stargatt &
Taylor, The Brandywine Building, 17 th Floor, 1000 West Street, Wilmington, DE 19801, Tel.
302-571-6600; for defendant Raul Giordano, John S. Malik, Esq., 100 East 14 th Street,
Wilmington, DE 19801, Tel. 302-427-2247; for defendant Antonio Inigo, Raymond M.
Radulski, Esq., 1225 N. King Street, Suite 301, Wilmington, DE 19801, Tel. 658-9388; and for
material witness Maria deBianchini, Jerome M. Capone, 1823 West 16 01 Street, Wilmington, DE
19806, Tel. 654-3260.
This was a prosecution under the Hobbs Act against several defendants from Argentina
who conspired and attempted to extort $10,000,000 from the DuPont Company. They had stolen
DuPont’s trade secrets associated with the production of its highly valuable Lycra spandex fiber.
Corky Falgowski and I worked with the victim, the FBI, and law enforcement officers from
Europe to develop the case, which, given the crimes and the international character of the
defendants and venues involved, was complicated. After a trial that lasted ten days or two
weeks, we succeeded in convicting all of the defendants. The convictions of three of the
defendants were overturned on appeal because the Third Circuit held that the evidence was
insufficient to sustain the convictions. That was, of course, not a result with which I agreed.
The case was significant to me because it was fascinating and tragic in its human dimensions and
very challenging in terms of logistics and evidence to bring to trial.
e. United States v. One Million Three Hundred Twenty-Two Thousand Two Hundred
Forty-Two Dollars and Fifty-Eight Cents (SL322.242.58t. 938 F.2d 433 (3d Cir. 1991) (In the
District Court as Civil Action No. 88-654-CMW).
The case in the District Court was before Judge Caleb M. Wright. The opinion on appeal
was written by then-Judge Samuel Alito. I was sole counsel for the U.S. in this matter. The
opposing counsel was Bartholomew J. Dalton, Esq., 1 106 West 10 lh Street, Wilmington, DE
19806 Tel. 302-652-2050, and Paul R. Regensdorf, formerly with Fleming, O’Bryan & Fleming,
now with Steams Weaver Miller, New River Center, 200 East Las Olas Boulevard, Suite 2100,
Ft. Lauderdale, FL 33301, Tel. 954-462-9500.
This was a civil forfeiture action involving proceeds of illegal drug trafficking, deposited
as gold bullion in a Wilmington, Delaware bank. I worked with the DEA agents responsible for
the matter in Florida and Delaware and filed the action on behalf of the United States. Because
of the claimant’s recalcitrance in discovery, we were able to have the claim dismissed and the
forfeiture was upheld. The case was significant because it involved what was then a relatively
new tool in the war on drugs, because it highlighted the complexities inherent in using the tools
of civil discovery in a case with criminal overtones, and because it emphasized the importance of
judicial insistence on fair compliance with the rules of discovery. The case became important to
me in an additional way. In private practice, I later represented a friend whose family home was
at risk of forfeiture because a grown son had used drugs on the premises. I therefore saw the
power in the forfeiture law from both the government’s and the property-owner’s perspectives.
f. Diseovision Associates v. Disc Mfg., Inc. . Civil Action No. 95-2 1-SLR (opinions at
1997 WL 699275 (D.Del. Sept. 16, 1997); 42 U.S.P.Q. 1749 (D.Del. Apr. 3, 1997), and, after my
involvement in the case, at 25 F.Supp.2d 301 (D.Del. 1998))
24
37
The case was before District Judge Sue L. Robinson. My co-counsel in the case included
Thomas J. Nolan, Esq., now with Skadden, Arps, Slate, Meagher & Flom LLP, 300 S, Grand
Avenue, Suite 3400, Los Angeles, CA 90071, Tel. 213-687-5000; Stephen L. Sulzer, Esq., and
Frederick Frei, Esq., then with Steptoe & Johnson, now, respectively, with Connolly Bove
Lodge Hutz LLP, 1990 M Street, NW, Suite 800, Washington, D.C. 20036, Tel. 202-331-7111,
and Andrews Kurth LLP, 1350 1 Street, NW, Suite 1100, Washington, D.C. 20005 Tel. (202)
662-2700; and Anthony C. Roth, Esq., of Morgan Lewis & Bockius, 1111 Pennsylvania Ave.,
NW, Washington, D.C. 20004, Tel. 202-739-3000 and D. Michael Underhill, Esq., then with
Morgan Lewis, now with McDermott Will & Emery, 600 Thirteenth Street, NW, Washington,
DC 20005, Tel 202-756-8000. Opposing counsel included Robert H. Richards, III, Esq., of
Richards Layton & Finger, One Rodney Square, Wilmington, DE 19801, Tel. 302-651-7740;
James B. Blanchard, Esq., of Brinks Hofer, Gilson & Lione, 455 N. Cityffont Plaza Drive, NBC
Tower, Suite 3600, Chicago, IL 60611, Tel. 312-321-4200; and The Hon. Michael Chertoff,
formerly of Latham & Watkins, now Secretary of Homeland Security, Washington, DC 20528,
Tel. 202-282-8000.
This was a complex patent case dealing with the technology for compact discs and
involving a very large number of attorneys. (I have not listed all of the participants from all of
the firms.) I had the role of local counsel for the plaintiff. I was involved with the case from the
beginning and watched the logistical issues mount for the court and the parties as the case moved
through discovery, claim construction, and trial. I had some substantive involvement but was
never lead counsel on any substantive issue. My primary responsibilities concerned procedural
issues and assisting the various attorneys for the plaintiff to work within the local rules and
customs of practice in the District Court in Delaware. The result of the litigation, when I left it,
was a mixture of rulings, with each side able to claim some victory. The importance and value
of the technology at issue and the sheer size of the workforce that each side deployed made this
case significant. I felt that 1 made a positive contribution in a very complicated case and learned,
from this and similar patent cases, the challenges that counsel and the court must address in
resolving highly technical questions in high-stakes patent disputes.
g. Ajinomoto Co.. Inc, v. Archer-Daniels-Midland Co. . Civil Action No. 95-2 1 8-SLR,
1996 WL 621830, and 621837 (D.Del. Oct. 21, 1996) and 1998 WL 151411 (D.Del. Mar. 31,
1998), tiff'd, 228 F.3d 1338 (Fed. Cir. 2000), cert, denied , 532 U.S. 1019 (2001).
The case was before District Judge Sue L. Robinson. My co-counsel in the case included
Arthur I, Neustadt, Esq., of Obion Spivak McClelland Maier & Neustadt, 1755 Jefferson Davis
Highway, Fourth Floor, Arlington, VA 22202, Tel. 703-413-3000; Marc R. Labgold, Esq.,
formerly of Obion Spivak and now with Antara BioSciences Inc., 2257 Compass Point Lane,
Reston, Virginia 20191, Tel. (703) 901-8860; Thomas Field, Esq., and Lawrence Rosenthal,
Esq., of Strook & Stroock & Lavan, 180 Maiden Lane, New York, NY 10038, Tel. 212-806-
5400. Opposing counsel included Jack B. Blumenfeld, Esq., of Morris Nichols Arsht & Tunnel],
1201 N. Market Street, Wilmington, DE 19801, Tel. 302-658-9200; Charles A. Laff, Esq., then
of LaffWhitesel Conte & Stewart, now with Michael Best & Friedrich LLP, 180 N. Stetson
Avenue, Suite 2000, Chicago, IL 60601, Tel. 312-222-0800; and J. Alan Galbraith, Esq., of
Williams & Connolly, 725 Twelfth Street, NW, Washington, D.C. 20005, Tel. 202-434-5000.
This was another complex patent case, in this instance dealing with the bioengineering of
25
38
bacteria to produce amino acids for livestock feed. Again, the case involved a large number of
attorneys (I have not listed all of them), and presented particularly technical scientific issues.
What made the case significant for me was the international character of the dispute and the very
human motivations that appeared to drive the actors. In addition, my co-counsel were adept at
presenting evidence through the use of computer technology, and that was one of my first
opportunities to see such technology applied to a significant degree in a courtroom setting. We
were successful in enforcing our client’s patent rights. My role as local counsel to plaintiff
became increasingly substantive as the case progressed and 1 was closely involved in the
development of the case for the plaintiff throughout discovery (which ranged over Europe,
Japan, and the United States), claim construction, and trial.
h. Buena Vista. Inc., et al. v. Wilmington Trust Company . Civil Action No. 87C-12-043,
1994 WL 555373 (Del. Super. Aug. 31, 1994).
The judge who presided over this case was Superior Court Judge Fred S. Silverman. My
co-counsel was my partner P. Clarkson Collins, Jr., Esq., Morris James Hitchens & Williams,
222 Delaware Avenue, 10 th Floor, Wilmington, DE 19801, Tel. 302-888-6800, and we were
assisted by associates and paralegals in the firm. Opposing counsel was Darryl K. Fountain, who
is no longer in practice.
This case involved a commercial dispute between our client, the defendant bank, and a
real estate developer and architect who claimed the bank’s lending practices resulted in the
failure of his real estate project. Mr. Collins and I developed the case together through discovery
and shared the load equally at trial. Among other things, I handled the cross-examination of the
plaintiffs’ principal and made the closing argument. The case was significant because it was
contentious litigation in which we obtained a favorable result at trial, with plaintiffs owing the
bank hundreds of thousands of dollars rather than collecting the seven figure damages sum they
had demanded.
i. Diltzv. United States. 77 1 F. Supp. 95 (D.Del. 1991).
District Judge Murray M. Schwartz presided over this case. My co-counsel was a
colleague in the U.S. Attorney’s Office, Patricia C. Hannigan, Esq., 1007 Orange Street, Suite
700, Wilmington, DE 19801, Tel. 302-573-6277. Opposing counsel was Bernard A. Van
Ogtrop, Esq., then of Cooch & Taylor, now with Seitz Van Ogtrop & Green, 222 Delaware
Avenue, Suite 1500, Wilmington, DE 19899, Tel. 302-888-7601; and Walter A. Oleniewski,
Esq,, then with Shulman Rogers Gandal Pordy & Ecker, now located at 2315 Twin Valley Lane,
Silver Spring, MD 20906, Tel. Number unknown.
This was a medical malpractice action brought under the Federal Tort Claims Act and
based upon allegations that mishandled surgeries by armed forces doctors on the plaintiffs eye
had complicated a congenital condition. Ms. Hannigan and I developed the defense and shared
responsibility in discovery. I took the. lead in briefing our unsuccessful motion for summary
judgment. Ms. Hannigan and I worked together to negotiate a settlement, which Ms. Hannigan
succeeded in doing after I left the U.S. Attorney’s Office for private practice. Because this case
involved allegations of malpractice that stretched over a number of years and different surgeries,
the case was significant in the challenge of marshalling evidence. It was also a particularly
interesting case because of the. medical science involved.
26
39
j. United States v. Ecke . Criminal Action No. 87-102-JRR.
The presiding judge was then District Judge Jane R. Roth. I was sole counsel in handling
the case for the United States. Opposing counsel were, for defendant Wolfgang O. Ecke, Joseph
A. Hurley, Esq., 1215 King Street, Wilmington, DE 19801, Tel. 302-658-8980; and, for
defendant Johann W. Zalud, J. Calvin Williams, Jr., Esq., 7234 Lancaster Pike, Suite 300D,
Hockessin, DE 19707, Tel. 302-234-8656.
This was a bank fraud case involving two German confidence men and a trail of evidence
across Europe. The case was significant for me because it was one of the first criminal cases, if
not the first, that I managed from beginning to end. I worked with the FBI and other government
officials in securing evidence in the United States and abroad, and I handled all aspects of the
trial, which concluded with convictions.
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
Most recently, I have been a member of the committee charged by the Chief Judge of the
Third Circuit to develop model civil jury instructions for the Circuit. With the help of
two outstanding law professors who have served as reporters for the committee, we have
largely completed the project but have on-going responsibilities for updating the
instructions. I view my pro bono activities, which are described in detail in response to
question number 1, section III, infra , as particularly significant and satisfying work. In
addition, I have endeavored through teaching, speaking, and serving as a panelist at
conferences to address issues of significance on various legal topics, particularly in the
field of intellectual property rights.
27
40
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
None.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
I do not anticipate any conflicts of interest to arise. My wife and I do not own securities,
except for mutual funds held in 401(k) accounts. My wife has worked recently for the
Red Clay Consolidated School District, and I have served in a variety of non-profit
community organizations. I review weekly the new case filings, to ensure that I recuse
myself when necessary. If the school district or one of those non-profit organizations
were to become a party to litigation in the Court, I would have to determine on a case-by-
case basis whether my or my wife’s involvement with the organization had been recent
enough to warrant recusal. I will continue to follow the guidelines of the Code of
Conduct for United States Judges in resolving any conflicts that may arise.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
As an Adjunct Professor, I have taught semester-long evening courses at the University
of Pennsylvania Law School and the Widener University School of Law. I have likewise
taught one-week, intensive seminars at the Vanderbilt University School of Law. I hope
to have continued teaching opportunities.
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report
28
41
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached Net Worth Statement
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
In 1986, 1 managed the re-election campaign of a friend, Steve Taylor, for a seat in the
Delaware House of Representatives. In 1996, 1 was the Delaware State Chair of the
Richard G. Lugar for President campaign. In 1994 and 2000, 1 served as a volunteer on
re-election campaigns for Senator William V. Roth, Jr. Also, in 2000, 1 was a volunteer
with the- George W. Bush for President campaign.
29
42
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1978
(5 U.S.C. app. §§ 101-111)
1. Person Reporting {last name, first, middle initial)
Jordan, Kent A
i. Court or Organization
3d Circuit
3. Date of Report
07/03/2006
4, Title (Article III Judges indicate active or senior status;
magistrate Judges indicate full- or part-time)
Circuit Judge-Nominee
5a, Report Type (check appropriate type)
jxj Nomination, Date 06/2 8*2 006
Q initial Q Annual Q Final
6. Reporting Period
01/01/2005
to
07/03/2006
5b. Q Amended Report
7. Chambers or Office Address
844 King Street
Lock Box 10
Wilmington, DE 19801
8. On the basis of the Information contained hi this Report and any
modifications pertaining thereto, it Is, in my opinion, in compliance
with applicable taws and regulations.
Reviewing Officer Date
IMPORTANT NOTES: The instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each part where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only; see pp 9-13 of instructions. )
| | NONE (No reportable positions.)
n. AGREEMENTS . (Reporting Individual onty; see pp. 14-1 6 of instructions.)
(x [ NONE (No reportable agreements.)
2 .
43
FINANCIAL DISCLOSURE REPORT
Name of Fenoa Reporting
Date of Report
Page 2 of 7
Jordan, Kent A
07/03/2006
HI. NON-INVESTMENT INCOME. (Reporting individual and spouse; seepp. 17-24 of Instructions.)
A. Filer’s Non-Investment Income
j | NONE (No reportable non-investment income.)
DATE SOURCE AND TYPE INCOME
(yours, not spouse's)
1. 03/2005
Vanderbilt University - teaching
$6,000
2. 09/2005
University of Pennsylvania School of Law
$10,000
3,01/2006
Widener University School of Law - teaching
$7,000
4, 02/2006
Vanderbilt University - teaching
$6,000
5.
B. SpOUSe'S Non-Investment Income - If you nvre married during any portion of the reporting year, complete this section.
(Dollar amount not required except for honoraria.)
| | NONE (No reportable non-investment income.)
1 . 1/2006 Red Clay Consolidated School District - salary
2.
3.
4.
5.
IV. REIMBURSEMENTS — transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children. See pp. 25-27 of instructions.)
1 | NONE (No reportable reimbursements.)
SOURCE
1. EXEMPT
2.
3.
5 ,
BESCR TOON
44
FINANCIAL DISCLOSURE REPORT
Page 3 of 7
Name of Person Reporting
Jordan, Kent A
Date of Report
07/03/2006
GIFTS. (Includes those to spouse and dependent children. See pp.2S-31 of instructions.)
| | NONE (No reportable gifts.)
SOURCE
1. EXEMPT
DESCRIPTION
VALUE
2 .
3.
4.
5.
VI. LIABILITIES. (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
[x] NONE (No reportable liabilities.)
C KBB H fiB . DESCRIPTION
VALUE CODE
45
Name of Person Reporting
Date of Report
Jordan, Kent A
07/03/2006
Page 4 of 7
VII. INVESTMENTS aad TRUSTS — Income, value, Ira ns actions (includes those of the spouse and dependent children. See pp, 34-57 of filing Instructions)
| NONE (No reportable income, assets, or transactions.)
Description of Assets
(inc luitmg liusl assets) :
i P Uce "( X 1" after each as>
i exempt from prior deck's
locorae during
reporting period
Gross veto #t end of
reporting period
Transactions during reporting period ;
(•)
HI
(0
<2)
(0.
If not eienspl from dot-toave
Amount
T yi*(*g %
Value
Value I
Type (< g
(2)
(3)
(4)
(5)
Code l
drv , rent, «:•;
Code2
Method
buy, sell, _ '
"'ih te
Value
Gain
Identity of
(A-ff) '
; or ini) 5i;i
«-P)
Code 3 ■
<Q-W)
(exemption)
: ^Month-
: ...
Code 2
(i-P>
Code ( -
(A-H)
buycr/seller
(if private
transaction)
1 . Brokerage Account # 1
46
VII. INVESTMENTS and TRUSTS — Income, value, transactions (includes those of Ike spouse and dependent children. See pp. 34-57 of filing instructions)
| | NONE (No reportable income, assets, or transactions.)
A.
B.
C.
Description of Assets
Income (faring
Gross value at end of
(including trust assets)
reporting period
reporting period
0)
(2)
U)
(2)
PUce "(X)* after each assel
Amount
Type (eg
Value
Value
exempt from prior disclosure
Code!
dn .rent,
Code 2
Method
(A-H)
ormL)
(J-P) Code 3
(0-^1
Transactions during repotling period .
Type (<?•
(2)
0)
(4)
fS)
buy, sell.
Pale
Value
Cain
Identity of
merger.
Month •
Code 2
Code 1
buyer.'seller
: redemption!
Day
(JP)
(AH)
(if private
transaction)
47
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 6 of?
Jordan, Kent A
07/03/2006
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS. .fnw
Filet's Non-Investment Income: Additional income received as compensation for duties as U.S. District Judge.
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 7 of 7
Jordan, Kent A
07/03/2006
IX. CERTIFICATION.
I certify tint all Information given above (Including Information pertaining to my spouse and minor or dependent children, if any) is
accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld because it met applicable statutory
provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been reported are in
compliance with the provisions of S U.S.C. app. § 50i et seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
FILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N.E.
Washington, D.C. 20544
48
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
LIABILITIES
Notes payable to banks-secured
Notes payable to banks-unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
Other unpaid income and interest
Real estate mortgages payable-add
schedule
Chattel mortgages and other liens payable
Other dcbts-itemize:
ASSETS
Cash on hand and in banks
j |
H9KS3I
U.S. Government securities-add schedule
Listed securities-add schedule
m
Mill
Unlisted securities-add schedule
Accounts and notes receivable:
Due from relatives and friends
Due from others
Doubtful
Real estate owned-add schedule
fWilll
Real estate mortgages receivable
Autos and other personal property
■IBS
Cash value-life insurance
Other assets itemize:
Delaware College Investment Plan accounts
mm
Certificate of Deposit
5
■31
HI
Total Assets
■9191
CONTINGENT LIABILITIES
As endorser, comaker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
Other special debt
Total liabilities
Net Worth
Total liabilities and net worth
GENERAL INFORMATION
Are any assets pledged? (Add schedule)
Are you defendant in any suits or legal
actions?
Have you ever taken bankruptcy?
49
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
Schwab Premier Money Sweep Shares $ 73,313
Schwab Premier Equity Fund Select Shares 14,622
Mutual Shares Class A 22,989
Schwab Hedge Equity Fund 22,437
Gateway Index Plus Fund 14,970
Total Listed Securities $ 148,331
Real Estate Owned
Personal residence $ 450,000
Real Estate Mortgages Payable
Personal residence
$ 38,844
50
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
I was court appointed to represent the petitioner in a death penalty habeas case. That
appointment was made in 1996. With co-counsel, and in consultation with our client and his
family, I worked on that case through briefing and argument in the District Court, through
briefing and supplemental briefing, two rounds of argument, and a motion for reargument en
banc in the Third Circuit, and a petition to the U.S. Supreme Court for a writ of certiorari.
Following the denial of relief at each of those stages, my co-counsel and I worked with our client
to secure a reduction in sentence from the Delaware authorities. Ultimately, we were
unsuccessful and our client was executed in May of 200 1 . Over a period of five years, largely on
an uncompensated basis, I probably devoted hundreds of hours to the representation of our client
but do not have records to give a precise estimate.
At the end of 2001 , 1 undertook on a pro bono basis the representation of two at-risk children as
their attorney guardian ad-litem. I appeared in Delaware’s Family Court approximately six
times. Counting court appearances, interviews with parents, stepparents, extended family
members, psychologists/counselors, and Division of Family Services personnel, discussions with
opposing counsel and with the assigned Deputy Attorneys General for the state, correspondence
to the court and to health care providers, and miscellaneous other matters, I estimate that I
devoted approximately eighty hours to the representation.
In 1994, 1 represented, under a Criminal Justice Act court appointment and at a substantially
reduced rate, an indigent defendant in a federal drug trafficking case. Along with co-counsel, I
filed pre-trial motions, handled a suppression hearing, prepared witnesses and evidence, tried the
case (a three or four day trial), appealed the conviction, and filed a petition for a writ of
certiorari. Again, the time investment was very substantial, but it is long enough ago that I
cannot recall now how much time was devoted to the matter.
Also in the mid 90’s, I was appointed by the court on an emergency basis to represent an
indigent material witness in a capital case in federal court. The matter required several
interviews and the negotiation of immunity with the government. I do not recall receiving
compensation for the representation, and, if there was any, it was at the substantially reduced
Criminal Justice Act rate. I do not now recall how much time was devoted to the matter.
In the early 90’s (’92 or ’93), I represented on a pro bono appointment through Delaware
Volunteer Legal Services an indigent woman in a landlord tenant dispute, which was resolved to
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my client’s satisfaction. Again, I cannot recall how much time was devoted to the matter.
In the mid 80’s, I represented on a pro bono basis a young father and family friend in Family
Court in relation to a custody dispute. I cannot recall how much time was devoted to the matter.
In addition to the foregoing pro bono efforts, I have spent many hours over the years on issues
associated with the delivery of legal services to those who otherwise would be unable to afford
representation. From 1994 to 1997, 1 served on the Board of Directors of the Community Legal
Aid Society, Inc. (“CLASI”), a statewide non-profit agency responsible for providing legal
services to low income people, and from 1 998 to 2002, 1 served on the standing committee of the
Delaware State Bar Association dedicated to the provision of legal services to people with low
income. I also was a member of an informal committee convened by the District Court to
explore ways to handle pro se prisoner litigation (Sec. 1983 claims) coming before the Court.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
Invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates — through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
I have never belonged to any such organization
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
I was invited to interview with attorneys from the office of White House Counsel
regarding an opening on the United States Court of Appeals for the Federal Circuit, and I
also expressed interest in the Third Circuit, since an opening on that court was said to be
imminent. Once the opening on the Third Circuit occurred, I expressed my interest to
Congressman Michael N. Castle.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No
5. Please discuss your views on the following criticism involving "judicial activism."
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The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this “judicial activism” have been said to include:
a.
A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b.
A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c.
A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d.
A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e.
A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
Judges do not make the rules; they apply them. While judges must be sensitive to how
their resolution of specific disputes may affect other disputes, they should not view
themselves as creating solutions for policy problems. That is the role of the elected
representatives of the people.
In that same spirit, judges should adhere to the doctrines that have developed to foster
judicial restraint and which reflect the wisdom of experience. Doctrines of ripeness and
standing ought to be obeyed so that decisions on the merits of a question are only reached
when a judge can act within the confines of a specific, well-defined case or controversy.
Similarly, by following precedent and recognizing the binding character of higher court
decisions, judges are steadily reminded of the boundaries within which the judiciary
should operate.
Judges should recognize that, even when they have the power to right what they perceive
to be wrong, not every wrong is theirs to right. A due respect for the other institutions of
government, especially the co-equal branches of our government, is essential.
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QUESTIONNAIRE FOR NOMINEES BEFORE THE COMMITTEE ON THE JUDICIARY,
UNITED STATES SENATE
AFFIDAVIT
I, Kent Amos Jordan, being duly sworn, hereby state that I have read and signed the
foregoing Questionnaire for Nominees Before the Committee on the Judiciary and that the
information provided therein is, to the best of my knowledge, current, accurate, and complete.
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Senator DeWine. Judge, thank you very much.
Judge Howard?
STATEMENT OF MARCIA MORALES HOWARD, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Howard. Thank you, Mr. Chairman. I want to thank all
of the members of the committee for giving me the opportunity to
appear before you here today.
I am very grateful to Senator Martinez for his time and for that
most gracious introduction that he gave. I am also grateful for the
support that both he and Senator Nelson have given me through
this process.
I want to express my gratitude to the President for nominating
me and giving me the opportunity to continue, or potentially to
continue, in public service.
I do not have an opening statement, but I would be honored to
introduce my family who are here with me today, and some friends.
My husband is here with me, Laurence Howard, and my two
children, Amanda Howard, who is nine, and Webb Howard, who is
six. I confess, when I looked back earlier, he was not awake.
[Laughter],
Senator DeWine. I am sure that was not a commentary on Sen-
ator Biden or the Chairman.
[Laughter],
Judge Howard. I think it had to do with getting up too early to
make the flight.
Senator DeWine. I am sure.
Judge Howard. My parents, Marcia and Ricardo Morales are
here. I will not share their ages. My sister, Rosa Maria Morales
King and my sweet nephew Gray King are here. My brother, Ri-
cardo Morales is here.
I am also very fortunate to have two dear friends with me, Jodi
Wiles, who has worked with me both when I was in private prac-
tice and has served as my judicial assistant and courtroom deputy,
and my dear friend Mary Summerville Welch. I am grateful to
them for joining me, and I am privileged to answer any questions
that you may have.
[The biographical information of Marcia Howard follows:]
55
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used).
Marcia Morales Howard
(la Morales Howard, Marcia Maria Morales, la Morales)
2. Address: List current place of residence and office address(es).
Residence: Jacksonville, Florida
Office address: United States District Court
300 N. Hogan Street, Suite 5-1 1 1
Jacksonville, FL 32202-4249
3. Date and place of birth.
07/16/65 - Jacksonville, Florida
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es).
I am married to Laurence Webb Howard, III. Laurence is the Vice President and General
Counsel of Interline Brands, Inc., 801 W. Bay Street, Jacksonville, FL 32204.
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
University of Florida, College of Law; August 1987 - May 1990; Juris Doctor, with
honors. May 1990.
Vanderbilt University; 1983 to 1987; Bachelor of Science degree; May 1987.
6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
June 2, 2003 - Present; United States Magistrate Judge for the United States District
Court for the Middle District of Florida
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November 1994 - May 2003; McGuireWoods LLP (f/k/a McGuire, Woods, Battle &
Boothe LLP) Partner, 1999-2003; Associate, 1994-1998
February 1991 - November 1994; Foley & Lardner, P.A.; Associate.
The law firms of Foley & Lardner, P.A. and Commander, Legler, Werber, Dawes, Sadler
& Howell, P.A. merged effective 2/1/91.
September 1990 - February 1991; Commander, Legler, Werber, Dawes, Sadler &
Howell, P.A.; Associate
August 1989 - May 1990; University of Florida College of Law; Teaching/Research
Assistant
May 1989 - August 1989; Kirkpatrick & Lockhart; Summer Associate.
August 1988 - May 1989; University of Florida College of Law; Teaching/Research
Assistant.
June 1988 - August 1988; Commander, Legler, Werber, Dawes, Sadler & Howell, P.A.;
Summer Law Clerk.
January 1988 - May 1988; University of Florida College of Law; Research Assistant.
I currently serve as an uncompensated, non-employee, board member and/or director of
the following family-owned entities: Morales Construction Company; Morales
Investments of Jacksonville, Inc.; MIC Holdings, Inc.; and Morgar Realty, Inc.
Prior to becoming a magistrate judge, I was a partner with McGuireWoods LLP. Due to
the firm’s structure, I was required to form a corporation in the name of Marcia Morales
Howard, P.A., which held my partnership interest. I permitted this professional
association to remain an active corporation in 2004 in order to complete my 2003 income
tax obligations. As certain of the firm’s 2003 tax obligations had not yet been determined
by the end of 2004, 1 permitted the corporation to remain active through the end of 2005.
The corporation had no income in either 2004 or 2005 as it has had no employees, and I
have not engaged in the practice of law. After closing the books and accounts, I
requested that the Secretary of State for the State of Florida terminate the corporation’s
active status effective December 31, 2005.
I presently serve on the Board of Directors of the following:
American Cancer Society, Duval County Unit Board Member
Northeast Florida Council for Community and Justice, Board Member and Secretary
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I previously served on the Board of Directors of the following entities:
Girl Scouts of Gateway Council, Board Member
Jacksonville Transportation Authority, Vice Chairperson (resigned upon becoming a
magistrate judge)
Jacksonville Human Rights Commission, Board Member (membership prior to becoming
a magistrate judge)
National Conference for Community and Justice, Board Member
Hispanic American Cultural Association, Board Member
TheatreWorks, Board Member
Bolles School Executive Alumni Council
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Order of the Coif, University of Florida College of Law
Book Awards: Legal Drafting, Federal Income Taxation I
Symposium Editor, Florida Law Review
Chief Defense Counsel, University of Florida Student Honor Court
9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
Federal Bar Association
American Bar Association
The Florida Bar
Florida Bar EEO Committee (prior to judicial service)
Federal Magistrate Judges Association
Jacksonville Bar Association
Chester Bedell Inns of Court
Jacksonville Women Lawyer’s Association
Hispanic Bar Association of Northeast Florida
Catholic Lawyer’s Guild
National Association of Railroad Trial Counsel (prior to judicial service)
Defense Research Institute (prior to judicial sendee)
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I have served actively on the following committees of the United States District Court,
Middle District of Florida:
2003
Committee for Automation and Technology
Subcommittee on Case Management/Electronic Case Filing
Committee on Case Management and Judicial Relations
Committee on Judicial Resources and Personnel
2004
Automation and Technology Committee
Committee on Case Management/Electronic Case Filing
Case Management and Judicial Relations Committee
Judicial Education and Meetings Committee
Magistrate Judge Committee
2005
Automation and Technology Committee
Subcommittee on Case Management/Electronic Case Filing
Case Management and Judicial Relations Committee
Criminal Law, Probation Administration and Pretrial Services Committee
International Relations Committee
Rules of Practice, Procedure and Administration Committee
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
To the best of my knowledge, the only organizations to which I currently belong that may
be actively lobbying before public bodies would be the Girls Scouts of Gateway Council
and the American Cancer Society. While I do not have specific knowledge of any current
lobbying efforts, it is my general belief that these organizations are frequently involved in
lobbying efforts.
1 currently belong to the following organizations:
St. Matthews Catholic Church
Girl Scouts of Gateway Council
St. Vincent’s Women’s Council
Northeast Florida Council for Community and Justice
Leadership Jacksonville
Wolfson’s Children’s Hospital, Women’s Board
American Cancer Society, Duval County Unit, Advisory Board Member
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11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. I’lcase explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
Florida Bar/Florida State Courts, 1 990
United States District Court for the Middle District of Florida, 1990
Eleventh Circuit Court of Appeals, 1994
United States District Court for the Northern District of Florida, 1995
Supreme Court of the United States, 1998
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
Following is a list of my written publications:
. Tenure Reform in Florida . National School Boards Association, Council of School
Attorneys, 1996
Non-Compete Agreements . Florida Basic Labor and Employment Law Course, 1997 and
1999
Chapter Contributor, Employment Discrimination Law, 1 998 Supplement
Chapter Chair, Employment Discrimination Law, 2000 Supplement
Chapter Chair, Employment Discrimination Law, 2002 Supplement
1 have not given any speeches involving issues of constitutional law or legal policy.
Although I have given other presentations to civic clubs and some other groups, those
have been limited to general presentations regarding the Middle District of Florida, our
courthouse and the types of matters that come before this Court.
13. Health : What is the present state of your health? List the date of your last physical
examination.
I am currently in excellent health. The date of my last physical examination is April 3,
2006.
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14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
I am currently employed as a United States Magistrate Judge for the United States
District Court, Middle District of Florida, Jacksonville Division. 1 was appointed to this
position by the Court on June 2, 2003. My term expires on June 1, 2011.
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions.
(1 ) , Significant opinions:
(a) Report and Recommendation dated November 13, 2003 in DirecTv v.
Brown, et al. . Case No. 3:03-cv-157-J-32MMH. On December 30, 2003,
the district judge adopted the portion of the Report and Recommendation
relating to Counts I and II of the complaint. However, he deferred ruling
on my recommendation that Count III be dismissed because the criminal
statute upon which Plaintiff relied did not provide for a private right of
action until the Eleventh Circuit rendered a decision on that issue. On
June 15, 2004, in a separate case, the Eleventh Circuit Court of Appeals
ruled that the claim asserted by DirecTV in Count III of its complaint was
properly dismissed because the statute on which it relied did not create a
private right of action.
(b) Report and Recommendation dated May 21 , 2004 in dayman v.
American Home Products, et al . Case No. 3:03-cv-1054-J-32MMH. This
Report and Recommendation was adopted in full on July 14, 2004.
(c) Report and Recommendation dated May 31, 2005 in United States of
America v. Griffis, et al. . 3:04-cr-337-J-99MMH. This Report and
Recommendation was adopted in full on July 6, 2005.
(d) Report and Recommendation dated July 26, 2005 in Snider v. Cingular
Wireless Health and Welfare Benefit Plan for Non-Bargained Employees
and Metropolitan Life Insurance Co. . Case No. 3:04-cv-198-J-99MMH.
This Report and Recommendation was adopted in full on September 27,
' 2005.
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(e) Report and Recommendation dated August 6, 2004 in United States of
America v. Mario Jerome Bentley . Case No. 3:04-cr-103-J-32MMH. This
Report and Recommendation, which recommended denial of the
defendant’s motion to suppress, was adopted on September 16, 2004, The
defendant later appealed his conviction based on the denial of the motion
to suppress. The Eleventh Circuit Court of Appeals affirmed that denial as
well as the conviction on September 23, 2005 in United States v. Bentley .
Case No. 05-1 1459, 2005 WL 2334366.
(f) Report and Recommendation dated May 19, 2004 in United States of
America v. Sandoval, et al.. Case No. 3:04-cr-32-J-99MMH. This Report
and Recommendation was adopted in full on June 15, 2004.
(g) Report and Recommendation dated February 24, 2005 in Mathews v.
Crosby , 3:99-cv-l 1 17-J-32MMH. This Report and Recommendation was
adopted in foil on March 15, 2005.
(h) Report and Recommendation dated March 1 9, 2004 in Gonzalez v.
Carithers. et al. . 3:04-cv-68-J-25MMH. This Report and
Recommendation was adopted in full on April 5, 2004.
(i) Report and Recommendation dated October 15, 2003 in Dawson v.
England . 3:02-cv-1037-J-21MMH. At the time this decision was entered,
the Eleventh Circuit Court of Appeals had not yet determined whether
Rule 4(m) of the Federal Rules of Civil Procedure permitted a district
court to extend the time for service of process in the absence of a showing
of good cause. This Report and Recommendation, which was adopted by
the Court on November 4, 2003, recommended such a holding. On March
1 1 , 2005, the Eleventh Circuit, after having permitted an immediate appeal
in light of the substantial difference of opinion regarding the issue,
determined that Rule 4(m) grants a district court the discretion to extend
the time for service of process even in the absence of a showing of good
cause.
(j) Order on Plaintiff s Motion for Leave to Amend Complaint to Join
Additional Defendants dated November 1 7, 2005 in Beebe v, Eli Lilly and
Company, et al. . Case No. 3:05-cv-161-J-25MMH.
(2) To my knowledge, none of my decisions have been reversed nor have they been
affirmed with criticism.
(3) I have not prepared any significant opinions on federal or state constitutional
issues.
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16. Public Office : State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
I served on the Board of the Jacksonville Transportation Authority from 1999 to 2003. I
was appointed to this position by Governor Jeb Bush in August of 1999 and reappointed
in June of 2002. 1 resigned upon accepting my appointment as a United States Magistrate
Judge.
I also served on the Jacksonville Human Rights Commission. I was appointed to this
Commission by Mayor John Delaney in 1996 and later reappointed for a subsequent
term.
I have never run for elective public office.
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
I did not serve as a law clerk.
2. whether you practiced alone, and if so, the addresses
and dates;
I have never practiced alone.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you
have been connected, and the nature of your connection
with each;
June 2003 - Present; United States District Court for the
Middle District of Florida, Jacksonville Division; 300 N.
Hogan Street, Suite 5-111, Jacksonville, FL 32202; United
States Magistrate Judge
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1994 - 2003; McGuire Woods LLP (f/k/a McGuire, Woods,
Battle & Boothe LLP); 50 N. Laura Street, Suite 3300,
Jacksonville, FL 32202. I joined McGuireWoods in
November of 1994 as an associate. I became a partner
effective January' 1, 1999, and withdrew from the firm in
2003 upon my appointment to the Middle District Court.
1990 — 1994; Foley & Lardner, P.A. and its predecessor,
Commander, Legler, Werber, Dawes, Sadler & Howell,
P. A., 200 North Laura Street, Jacksonville, FL 32202;
associate attorney.
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
From the time I graduated from law school until mid- 1993, my
practice was devoted to insurance defense litigation, medical
malpractice litigation, and commercial litigation.
From mid- 1993 until 1997, 1 shifted the focus of my practice from
general litigation to labor and employment law. During this
period, at least fifty percent of my time was spent representing
management interests in labor and employment matters. The
remaining fifty percent involved different types of commercial
litigation and personal injury litigation (predominantly suits
brought under the Federal Employers’ Liability Act).
1997 - mid-2003 ~ During this period, seventy-five to eighty-five
percent of my practice was devoted to handling labor and
employment matters, litigation resulting from non-competition
agreements, and providing general advice to clients on labor and
employment matters. The remaining time was spent on various
types of commercial and personal injury litigation matters, as well
as some minor criminal matters.
In June, 2003, 1 began my term as a United States Magistrate
Judge. In this position, I am responsible for the pretrial
management of all civil and criminal matters in my assigned cases.
With regard to criminal matters, I preside over initial appearances
and arraignments. I conduct detention hearings, and thus,
determine whether to release a defendant on bond or detain that
defendant pending resolution of the charges. I also preside over
any bond revocation proceedings. I resolve non-dispositive
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motions and preside over any hearings necessary to resolve those
motions. I have conducted numerous evidentiary' hearings on
motions to suppress evidence and accepted countless felony guilty
pleas. I have also adjudicated guilt and sentenced a number of
defendants charged with misdemeanor offenses. In addition to
these regular responsibilities, when acting as the duty judge, I
review and issue search warrants, arrest warrants and seizure
warrants.
I also carry responsibilities relating to the civil case load. These
duties include resolving non-dispositive matters, conducting
evidentiary hearings and preparing reports and recommendations
regarding dispositive matters referred to me by the assigned district
judge. I also conduct status conferences and settlement
conferences. With the consent of the parties, I have exercised full
jurisdiction over federal civil cases.
Magistrate judges in the Jacksonville division of the Middle
District of Florida generally handle social security appeals on a
consent basis. This means that I am responsible for the final
dispositive judgment in these cases and have made such
determinations on forty occasions to date. I have also gained
experience in handling admiralty matters.
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
During the first few years of my practice, my typical clients were
physicians, hospitals, their insurers and various commercial
entities. As I transitioned to a labor and employment practice, my
clients were corporations or smaller companies, although I also
represented individuals in non-competition litigation. During the
last six years of my practice, most of my work was for large
national or multinational corporations. However, I continued to
represent local companies and individuals in appropriate cases.
c. 1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
The frequency of my court appearances changed significantly over
time. During the first several years of my practice, when I was
handling general litigation matters, I appeared in court for hearings
frequently. From 1993 to 1997, as my practice shifted more to
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labor and employment, the frequency of my court appearances
began to wane. Most labor and employment matters at that time
were litigated in federal court rather than state court. It was my
experience that the federal courts required, and indeed allowed,
fewer oral arguments. However, during that same time frame,
because I continued to handle other types of litigation, I continued
to appear in state court on a regular basis. From 1997 to 2003,
because my practice focused more heavily on labor and
employment law in federal court, my court appearances were
limited to pretrial conferences, trials, and motion hearings.
2. What percentage of these appearances was in:
(a) federal courts: 70%
(b) state courts of record: 30%
(c) other courts.
3. What percentage of your litigation was:
(a) civil: 95%
(b) criminal: 5%
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
I tried four cases to verdict or judgment. I was lead counsel in one
of the trials and associate counsel in the other matters. I was also
lead counsel in numerous cases which resulted in the entry of
summary final judgment in favor of my client. Accordingly, they
did not reach trial. In addition, I have handled two commercial bid
protests under the Florida Administrative Code, one of which
culminated in a hearing and an order requiring the contract to be
re-bid. My client responsibilities have also given me the
opportunity to handle arbitrations to final judgment.
5. What percentage of these trials was:
(a) jury; 75%
(b) non-jury. 25%
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18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
1 . Held v. CSX Intermodal. Inc. . Case No. 3:97-cv-279-RWN. I represented CSX
Intermodal in a lawsuit alleging violations of the Americans with Disabilities Act.
I handled all aspects of this matter until experts were deposed. At that time, I
enlisted the assistance of another attorney in my office for the purposes of these
depositions as a trial in federal court would have prevented me from completing
them on a timely basis. I also prepared the legal argument of the summary
judgment brief. This case involved complicated issues relating to whether and
when the duty to accommodate an individual arises under a given set of
circumstances. It also involved complex questions regarding whether the plaintiff
was covered by the Americans with Disabilities Act. Final summary judgment
was entered in favor of CSX Intermodal, Inc.
(a) Mid-1997 through April 1998.
(b) United States District Court for the Middle District of Florida,
Jacksonville Division, The Honorable Ralph W. Nimmons.
(c) C. Warren Anderson, Esq.
Anderson & Howell
2029 North Third Street
Jacksonville Beach, Florida 32250
Telephone: (904) 247-1972
Cindy L, Anderson, Esq.
Eraclides, Johns, Hall, Gelman, Eikner & Hohannessen, LLP
4811 Atlantic Boulevard
Jacksonville, Florida 32207
Telephone: (904) 306-9955
2. EEOC v. SeaWorld of Florida. Inc. . Case No. 6:99-cv-710-ACC. In 1999 and
2000, Eva Tashjian-Brown and I defended SeaWorld of Florida, Inc. against a
class action brought by the EEOC alleging sexual harassment. The matter was of
particular significance to the client in light of the adverse publicity attendant to
such claims. Ms. Tashjian-Brown and I were able to resolve the matter with the
12
67
EEOC without substantial press coverage, without the necessity of far ranging
class notification and without the imposition of a consent decree.
(a) Mid-1 999 through mid-2000.
(b) United States District Court for the Middle District of Florida, Orlando
Division, The Honorable Anne C. Conway.
(c) Eve Lowe, Esq.
Lauren Greenbaum, Esq.
Equal Employment Opportunity Commission
Miami District Office
One Biscayne Tower, Suite 2700
Two South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 530-6005
3. Huff v, CSX Transportation. Inc. . Case No. 5:98-cv-142-WTH. I represented
CSX Transportation, Inc. in defending a lawsuit alleging violations of the
Americans with Disabilities Act. The plaintiff in this case had previously sued
CSX Transportation successfully on two separate occasions (under the Federal
Employers’ Liability Act), and had received over half a million dollars in
compensation. Despite this, he sued CSX Transportation a third time, alleging
that the company had failed to accommodate him. On this occasion, my firm was
retained to represent CSX Transportation. I handled all aspects of this matter
through summary judgment. It was significant because the plaintiffs claims
required analysis of almost every issue under the Americans with Disabilities Act,
including unresolved issues such as the extent of an employer’s duty to promote
or transfer a disabled individual, and the application of the continuing violation
doctrine to Americans with Disabilities Act cases. We ultimately obtained a full
summary judgment on behalf of CSX Transportation. Plaintiff appealed the
matter to the Eleventh Circuit Court of Appeals. I prepared the brief on behalf of
CSX Transportation and the Eleventh Circuit affirmed the summary judgment.
See Huff v. CSX Transportation. Inc, . Case No. 00-10194.
(a) Early 1998 through October 2000.
(b) United States District Court for the Middle District of Florida, Ocala
Division, The Honorable William Terrell Hodges.
(c) Robyn Bufford, Esq.
Jeffrey W. Bennitt, Esq.
Bennitt & Bufford, L.L.C.
One Perimeter Park South, Suite 325
Birmingham, Alabama 35243
Telephone: (205) 970-0813
Mr. Huff subsequently filed yet another charge of discrimination alleging that
CSX Transportation would not permit him to return to work in violation of the
Americans with Disabilities Act. Upon completion of the administrative
13
68
proceedings, he again filed suit against CSX Transportation. After receiving the
complaint, I contacted Mr. Huffs lawyer and provided him with a copy of the
district court’s decision, the Eleventh Circuit Court of Appeals decision, and the
relevant history regarding the plaintiffs claims. After consultation with his
attorney, Mr. Huff voluntarily dismissed his case with prejudice.
(a) February 2002 - July 23 , 2002 .
(b) Duval County Circuit Court, Case No. 02-01448-CA-CVB.
(c) Donald E. Pinaud, Jr., Esq.
Law Offices of Kattman & Pinaud, P.A.
4069 Atlantic Boulevard
Jacksonville, Florida 32207
Telephone: (904) 398-1229
4. McAnany v, MediaOne, et al„ 3:01-cv-1321-JHM and Smith v. MediaOne. et ai. .
3:02-cv-370-JHM. In 2001 and continuing to early 2003, 1 was lead counsel
representing AT&T Broadband (and its successor Comcast) in connection with
two lawsuits alleging violations of the Fair Labor Standards Act and Florida’s
Whistleblower Protection Statute (Fla. Stat. § 448.102). These cases should have
been fairly routine. However, upon filing the lawsuit, one of the plaintiffs sought
and received significant media attention. She also corresponded with city
officials which resulted in the City Council requesting that the Attorney General
investigate our client, as well as the filing of a class action on behalf of the area’s
cable customers. One of the two plaintiffs ultimately agreed to dismiss his claims
with prejudice in exchange for an agreement that my client relieve him from the
obligation of satisfying a sanction award imposed by the Court, while the other
dismissed her claims with prejudice in exchange for a payment of attorney’s fees
and costs to her counsel.
(a) November 2001 -December 2002.
(b) United States District Court for the Middle District of Florida,
Jacksonville Division, The Honorable John H. Moore, II.
(c) Eric S. Block, Esq.
6817 Southpoint Parkway, Suite 2502
Jacksonville, Florida 32216
Telephone: (904) 475-9400
5. Globe Data Systems, Inc, v. Griebel and Monarch Art Plastics. LLC . Case No.
3:01-cv-557-RWN. I was lead counsel representing Globe Data Systems in this
action seeking injunctive relief and damages against an individual defendant for
violation of a non-competition agreement and against both the individual and her
employer for misappropriation of trade secrets and tortious interference with
advantageous business relationships. With arduous investigation prior to filing
the action, we were able to obtain a broad preliminary injunction providing
significant protection for the client’s business interests. With that injunction
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69
substantially limiting the defendants’ business activities, we were able to
negotiate a resolution of the matter satisfactory to the client.
(a) May 2001 -July 2001.
(b) United States District Court for the Middle District of Florida,
Jacksonville Division, The Honorable Ralph W. Nimmons.
(c) Frederick Dyer Page, Esq,
Holland & Knight LLP
50 N. Laura Street, Suite 3900
Jacksonville, Florida 32202
Telephone: (904) 353-2000
6. Hamerter v. Busch Entertainment Corporation . Case No. 8:00-cv-824-JSM. I
represented Busch Entertainment Corporation in this action alleging employment
discrimination and violations of the Fair Labor Standards Act. The matter was
significant to Busch Entertainment because the plaintiff, a current employee,
challenged an established seniority system. In addition, plaintiff challenged
Busch Entertainment Corporation’s ability to enforce a newly instituted
mandatory alternate dispute resolution program which required employees to
arbitrate their claims. On behalf of Busch Entertainment, I filed a motion for
summary judgment as well as a motion to compel arbitration. The Court
ultimately granted summary judgment in favor of Busch Entertainment
Corporation.
(a) April 2000 - October 2001.
(b) United States District Court for the Middle District of Florida, Tampa
Division, The Honorable James S. Moody.
(c) Yveline Paul, Esq.
Paul & Assoc., Law Firm
620 East Twiggs Street, Suite 102
Tampa, Florida 33602-3938
Telephone: (813)226-3997
7. Hammick v. Metal Container Corporation , Case No. 3:01-cv-65-HLA. Gilham v.
Metal Container Corporation . Case No. 3:01-cv-66-HLA, and Bradley v. Metal
Container Corporation . Case No. 3:01-cv-67-HES. Rodney A. Satterwhite of the
firm’s Richmond office and I represented Metal Container Corporation in
defending three companion cases brought by employees of Metal Container
alleging gender discrimination and harassment. 'Hie cases raised a broad range of
issues from the enforceability of settlement agreements entered into by the
employees, to the scope of claims that could be brought, the status of the harasser,
and the availability of punitive damages. Plaintiffs’ counsel propounded
voluminous discovery requests and deposed some thirty witnesses (current and
former management and non-management employees of Metal Container
Corporation). The matter was further complicated by the fact that the claims
spanned over a decade, and the fact that the three plaintiffs remained employed by
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70
Metal Container throughout the litigation. A summary judgment motion was filed
on behalf of Metal Container in the Bradle y action. All three of the matters were
satisfactorily resolved prior to the filing of summary judgment motions in the two
remaining cases.
(a) January 2001 - January 2002.
(b) United States District Court for the Middle District of Florida,
Jacksonville Division, The Honorable Henry L. Adams and The
Honorable Harvey E. Schlesinger.
(c) Patricia Dodson, Esq.
Terrell, Hogan
233 E. Bay Street, Suite 800
Jacksonville, Florida 32202
Telephone: (904) 632-2424
Jennifer Kolinski Millis, Esq.
Law Office of W.C. Gentry
One Independent Drive, Suite 1701
Jacksonville, Florida 32202
Telephone: (904) 356-4100
8. Codrington v. Anheuser-Busch, Inc. . Case No. 8:98-cv-2417-RAL. I, with the
assistance of Rodney A. Satterwhite of the firm’s Richmond, Virginia office,
represented Anheuser-Busch, Inc. in a ten-plaintiff retaliation claim filed by
former employees who failed to obtain continuing employment with Anheuser-
Busch, Inc. after the company’s Tampa brewery closed in 1995. This case was
substantial, both because of the precedent it set for future Anheuser-Busch
brewery closings and because of the potential financial risk. Summary judgment
briefs were filed on behalf of Anheuser-Busch on January 31, 2000. The matter
was resolved shortly thereafter.
(a) October 1 998 - April 2000.
(b) United States District Court for the Middle District of Florida, Tampa
Division, The Honorable Richard A. Lazarra.
(c) Thomas W. Dickson, Esq.
Fechter & Dickson, P.A.
1201 Swann Avenue
Tampa, Florida 33606
Telephone: (813) 254-2404
9. Hollenbeck v. General Motors . I participated with Susan Maisa in the defense of
General Motors in an Americans with Disabilities Act action brought by Steven
Hollenbeck. At the time this matter was litigated, the Americans with Disabilities
Act was quite new. Issues relating to the preparation of jury instructions,
preparation of the trial brief and the motion for judgment as a matter of law
required significant analysis, given the fact that there had been so few ADA
16
71
decisions at that time. In addition to being responsible for half of the witnesses, I
was responsible for drafting the jury instructions and dispositive trial motions, as
well as handling the legal arguments and charge conference. The jury ultimately
returned a verdict in favor of General Motors.
(a) May 1994
(b) United States District Court for the Western District of Wisconsin, Judge
Shabaz.
(c) Willie J. Nunnery, Esq.
802 West Broadway, Suite 21 1
Madison, Wisconsin 53713
10. Nacklev v. Healthcare. U.S.A.. Case No. 3:95-cv-551-HES. Scott Cairns and I
represented Healthcare, U.S.A. in an action brought by a former employee
alleging gender discrimination and intentional infliction of emotional distress.
The plaintiff had been terminated after being accused of sexual harassment. I
assisted in the discovery on this case and prepared the summary judgment motion
as well as the appellate brief. Mr. Nackley’s claims were significant because of
the risk employers frequently mn when they terminate employees who are
accused of harassment. We ultimately obtained a summary judgment on behalf of
Healthcare U.S.A. That summary judgment was upheld by the Eleventh Circuit
Court of Appeals. 107 F.3d 26 (1 1th Cir. 1997).
(a) 1995 -January 1997.
(b) United States District Court for the Middle District of Florida, The
Honorable Harvey E. Schlesinger. Eleventh Circuit Court of Appeals,
Judges Birch, Cames and Fay.
(c) Linda Ingham, Esquire
Marks, Gray, Conroy & Gibbs, P.A.
1200 Riverplace Boulevard, Suite 800
Jacksonville, Florida 32207
Telephone: (904) 398-0900
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
(1) In 1997, 1 assisted a client in the analysis and handling of a potential WARN Act
liability in excess of $ 1 ,000,000.00 resulting from the sale of certain operations.
This entailed a review of the transaction documentation, analysis of the potential
WARN Act exposure, identification of options to reduce the potential WARN Act
liability, and ultimate coordination and handling of the plan of action.
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72
(2) In 1996, Timothy J. Corrigan (now United States District Judge Corrigan) and I
were asked to serve as inventory attorneys, on a pro bono basis, for the practice of
Jeffrey Mulrain, Mr. Mulrain, a sole practitioner with a substantial practice, went
into a coma suddenly and died three weeks later. Initially, Judge Corrigan and I
faced this challenge with the optimistic goal of keeping Mr. Mulrain’s practice
going until he could return to work. However, it quickly became apparent that
Mr. Mulrain would not be returning. At that time, it became necessary to find
new representation for all of his clients, particularly those who faced statute of
limitations issues, criminal hearing/trial deadlines and immigration deadlines. A
major factor complicating our mission was the fact that many of Mr. Mulrain’s
clients had paid him in advance to complete their legal work and were unable to
pay fees a second time. Nonetheless, they were in a position of needing prompt
representation lest they be deported or incarcerated. For the benefit of Mr.
Mulrain’s wife and young children, we also wanted to avoid any future claims
against the estate. Judge Corrigan and I were successful in finding pro bono
representation for a significant number of Mr. Mulrain’s clients and were also
able to secure representation for all of the remaining clients who were left in Mr.
Mulrain’s practice at the time we were appointed as inventory attorneys. My
duties in this regard extended through the next four years as I continued to assist
clients who called seeking information and documents.
(3) In 2002 and 2003, 1 advised a major financial institution with regard to
compliance with its Fair Labor Standards Act obligations. In doing so, I assisted
them in identifying errors in the manner their systems were calculating an
employee’s regular rate of pay so that the matter could be resolved to avoid future
litigation. I also advised them on the implementation of a program to correct the
previous underpayments to employees.
(4) Previously, from 1998 - 2000, 1 assisted attorneys in the firm’s Charlotte, North
Carolina office with the defense of five Fair Labor Standards Act actions filed in
the Southern District of Florida against another financial institution. These
actions challenged either the classification of certain bank employees or the
alleged failure to pay overtime compensation on a class wide basis. The number
of plaintiffs involved in these cases ranged from 5 to approximately 1500. The
matters were extremely significant in terms of the damages sought as well as their
potential impact on the bank’s operations and its classification of current and
future employees.
(5) From 1 998 - 200 1 , 1, along with one of my partners, represented a national
securities brokerage in an employment discrimination matter. Over the plaintiffs
objection, we successfully moved to compel arbitration of the plaintiffs claims
pursuant to NASD regulations. In addition to the normal factual issues present in
any age and sex discrimination claim, this case raised several critical legal issues
regarding the arbitrability of a number of plaintiffs claims as well as the
18
73
recoverable damages. Surprisingly, given the fact that the matter was being
arbitrated, there were also a number of contested discovery issues. It was
ultimately resolved shortly before the NASD arbitration, but not before the
arbitration panel was called upon to resolve a number of disputed issues.
(6) In both 1 994 and 1 995, 1 was called upon by separate clients to provide legal
advice with respect to labor and employment laws affecting companies doing
business in the Commonwealth of Puerto Rico. As part of my analysis, I obtained
and translated relevant Puerto Rican labor and employment laws and prepared a
detailed summary of those laws as well as all other federal employment laws
which would impact entities doing business in the Commonwealth of Puerto Rico.
(7) As a magistrate judge, I have participated in a number of continuing legal
education programs regarding issues including Fair Labor Standards Act claims,
professional responsibility, courtroom decorum, trial preparation and electronic
case filing. In 2005, 1 was asked to be the keynote speaker at the annual meeting
of the Social Security Administrative Law Judges.
(8) At the request of the various district judges, I have conducted numerous
settlement conferences with success in all but one occasion. As a result of this
experience, as well as my attendance at the Federal Judicial Center’s Mediation
Skills Workshop, I have been active in advocating the creation of a formal
mediation program in the Middle District of Florida to help address our heavy
civil case load.
(9) As a member of the Court’s Subcommittee on Case Management/Electronic Case
Filing, I participated in the preparation of the administrative procedures utilized
for the implementation and administration of the Case Management and
Electronic Case Filing system which went into effect in July of 2004. Similarly,
as a member of the Committee on Rules of Practice, Procedure and
Administration, I recently participated actively in revising the Local Rules for the
United States District Court, Middle District of Florida.
(10) In appropriate circumstances, I have invited troubled youth and students
interested in the criminal justice system or the legal profession to spend a day in
chambers observing various court proceedings and chambers activities.
Additionally, at the request of various community leaders, I have also spoken at
career days for some of the community’s inner city schools which have focused
on inspiring young students to stay in school and to set for themselves the goal of
not only graduating but proceeding with further education.
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II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
Other than dividends I expect to earn on publicly traded investments and return on my
personal investments in the family owned companies previously identified, the only such
arrangement of which I am aware is my continued participation in the McGuireWoods
401k plan which is administered by T. Rowe Price.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
Federal judicial officers are required to comply with the Code of Conduct for United
States Judges as well as the mandates of the Ethics Reform Act of 1989, 28 U.S.C. § 455.
As I have in the past, I will continue to refer to the statutory authority, case law
interpreting that authority, and the Guides to Codes of Conduct for guidance when faced
with any issue of concern.
It is my practice to recuse myself in any cases involving Wachovia Corporation and
Compass Bancshares as a result of stock ownership in these entities. It is also my
practice to recuse myself in any matters relating to the Jacksonville Transportation
Authority that involve the time frame in which I served on the Authority or any matters
related to decisions that came before us during my tenure. I also recuse myself from
cases involving my husband’s employer. As my sister-in-law (the wife of my husband’s
brother) is employed by the Office of the General Counsel for the City of Jacksonville, I
regularly disclose her position to litigants. However, as she is not involved in litigation
matters, and has had no involvement in any City of Jacksonville matter that has come
before me, I have not found her position to cause frequent recusal.
For the past three years, it has been my practice to recuse myself from matters involving
my previous law firm due to my relationship with many of the partners as well as my
continuing business arrangement with the firm regarding my retirement plan. I will
continue to do so. It has also been my practice to recuse myself from all matters relating
to my previous clients. Given the length of time that has now elapsed since my
representation of those clients, it is my intention, as of June 2, 2006, to determine
whether recusal is required with regard to a particular client on a case by case basis rather
20
75
than automatically recusing myself from all matters involving any of my former clients
regardless of how insignificant my former representation may have been.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
A copy of the Financial Disclosure Report is attached.
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
A financial net worth statement as of June 12, 2006 is attached.
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I served on the finance committee for mayoral candidate John Peyton for a brief period in
early 2003. However, as I was selected as a magistrate judge soon thereafter, I performed
no significant work on this campaign and resigned shortly after being asked to serve on
the committee.
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76
AO-IO
Rev. 1/2004
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1978
(5 L1.S.C. app. §§ 101 -ill)
1 , Person Reporting (last name, first name, Middle initial)
Howard, Marcia M
2. Court or Organization
USDC-Middle District of FL
3. Date of Report
6/12/2006
4. Title (Article 111 Judges indicate active or senior status;
magistrate judges indicate full- or part-time)
District Judge - Nominee
5. RcportType (check appropriate type)
(•) Nominatioa Date 6/6/2006
O Initial O Annual Q Final
6. Reporting Period
1/1/2005
to
6/12/2006
7. Chambers or Office Address
U.S. Courthouse
300 N. Hogan Street, #5-1 ! 1
Jacksonville, FL 32202-4249
8. On the basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
Reviewing Officer Date
IMPORTANT NOTES The instructions accompanying (his form must be followed Complete all parts, checking the NONE box for each part
where you have no reportable information Sign on last page
L POSITIONS. (Reporting individual only; see pp. 9-13 of filing instructions)
□ NONE - (No reportable positions.)
POSITION
Registered Agent/Officer/Director
NAME OF ORGAN IZATION/ENTITY
Marcia Morales Howard, P.A. (sole proprietorship)
2.
Officer/Director
Morales Construction Co., Inc.
3.
Officcr/Director
Morgar Realty, Inc.
4.
Director
Morales Investments of Jacksonville, Inc.
5.
Director
MIC Holdings be.
6.
Board Member
Girl Scouts of Gateway Council (non-profit)
7.
Board Member
Theatreworks (non-profit)
8.
Board Member
American Cancer Society - Duval County Unit (non-profit)
9.
Board Member
Wolfson Children's Hospital Women’s Board (non-profit)
10.
Member
St. Vincent's Hospital Women's Council (non-profit)
11.
Board Member
National Conference for Community & Justice (non-profit)
12.
Board Member / Secretary
Northeast Florida Center for Community & Justice (non-profit)
13.
Trustee
Irrevocable Insurance Trust #1
U. AGREEMENTS. {Reporting individual only; see pp. 14-16 of filing instructions)
□ NONE - (No reportable agreements.)
2003
DATE
P ARTIES AND TERMS
McGuire Woods LLP 401 (k) (administered by T. Rowe Price)
77
B. Spouse’s Nou-In vestment Income - (If you were married during any portion of the reporting year, please complete this section. Dollar amount
not required except for honoraria.)
□ NONE * (No reportable non-investment income.)
Interline Brands, Inc., salary
Interline Brands, Inc., salary
IV. REIMBURSEMENTS - transportation, lodging, food , entertainment.
— (brctudes ttroscttrspouscanij TtependentxhTtdren.'"See'pipr25=27-ofiTistractrons^-
n NONE - (No such reportable reimbursements.)
I. Exempt
SOURCE
V. GIFTS. (Includes those to spouse and dependent children. See pp. 28-3 1 of instructions.)
CD NONE - (No such reportable gifts.)
SOURCE DESCR I PTION
t. Exempt
VI, LIABILITIES. (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
Si NONE - (No reportable liabilities.)
CREDITOR
PJSSBJEILQN
V AWe CQPE
79
14. Investment Co. of America Fund/A
15. Washington Mutual Investors Fund/A
I 16, Growth Fund of America/A
Franklin Balance Sheet In vestment/ Inv. A.
Franklin Small Mid Cap Growth Fund/A
t. Itwome/Gaiii Codes: A ”•11,000 or less 8 » $!,OOI-S2,SOO C “*2,501-15.000 D = $5,001 -$t 5,000 E - 1(5,00! -150 000
{ScoCohtmns 8t and CM) F *150,001 -It 00 0W G “$100,001-11.000,000 HI * It.OOO.OOt-IS.OOo.OOO H2 * More titaoS 5.000,000
2. Value Codes: i --- $15,000 or less K -$15,001-150.000 L • $50,001 -SIOO.OOO M » $100,001-$.’ 50.000
(See Columns Ci and D3) N “ $2 SO.OOO $500,000 O = $500,00!-$!, 000 WO PI =$1,000.00! $.5,000,000 P2 * $5, 0>»,00 1 -$25,000,000
P3 - $25 ,000,00 1 -55 0,000,000 P4 = $Mote dan $50,000,000
3. Value Method Codes Q “Appraisal R * Cos! (Real Estate Only) S “Assessment T = Cash/Market
(See Column C2) l' - Book Value V = Other W “Estimated
80
FINANCIAL DISCLOSURE REPORT
Page 2 of 2
VH. INVESTMENTS and TRUSTS — income, value, transc3 lions (includes those of tltc spotise and dcpeiidem children. See pp. 34-5? of filing instructions.)
Description of Assets
(including trust assets)
Place "(X)” after each asset exempt
from prior disclosure
(l)
Amount
Code 1
(A -H)
(2)
Type (e.g.
hit)
0)
Value
Code 2
(J-P)
(2)
Value
Method
Code 3
(Q-VV)
(I)
Type (eg.
buy, sell,
redemption)
(2)
Date:
Month -
Day
D)
Value
Code 2
(J-P)
(4)
Gain
Code 1
(AH)
(5)
Identity of
buyer/setler
(ifprivate
transaction)
19.
Euro Pacific Growth Fund/A
20.
Templeton Developing Markets Trust/A
21.
State Street EAFE International Index F
22.
State Street S&P 500 Index
23.
Wachovia 401(k)
D
IntVDiv.
M
T
24.
Stable Fund
25.
Southland Life Insurance Policy
A
Interest
J
T
26.
Bank of America C.D.
D
M
T
1 . locoOK/Oain Codes:
(Sec Columns Bl and CM)
2. Value Codes:
(Sec Columns C! and D3)
3. Value Method Codes
(See Column C2)
A “$1,000 or less
F ~ $50,001 -$100,000
) “SI 5,000 or less
N - $250,000-5500,000
P3 =$25,000,001 -$50,000,000
Q = Appraisal
U “ Book Value
B " $ 1 ,00 1 -$2,500
G =$100,001- SI, 000,000
K “SlS.OOl-SSO.OOO
O =$500,001 -$1,000,000
R =Cost (Real Estate Only)
V =Otber
C « $2,50l-$5,000
111 = Si.OOO.OOl-SS.OOO.OOO
I- « $50,001 -$100,000
PI - 1 1 ,000,00 1 -$5,000,000
P4 = SMore than $50,000,000
S = Assessment
W - Estimated
D “ $5,00l-$15,000
H2 » More than $5,000,000
M - $ 1 00,001 -$250,000
P2 » $5,000,001 -$25,000,000
T " CaslVMarket
81
VDL ADDITIONAL INFORMATION OR EXPLANATIONS (Mk.BpwofRq.M-)
Part I - The Irrevocable Trust disclosed on Line 12 is an unfunded trust.
Part HI - My non-investment income since January 1, 2004 has been limited to my U.S. government salary.
Part VH, Co. 8(2) - Ptn, Inc. = Partnership Income.
Part VII, Co. 8(1 ) and C(l) = Income and values for the 40 i k accounts are based upon the most recent statement received which reflect income and value
as of March 3 1 , 2006.
IX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et. seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
note; any individual who knowingly and wilfully falsifies or fails to file this report may
BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
82
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts, real
estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, and other immediate members of your household.
83
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
Wachovia Coip.
$ 264,972
Compass Bancshares, Inc.
114,744
Total Listed Securities
$ 379,716
Real Estate Owned
Personal residence
$ 280,000
Real Estate Mortgages Payable
Personal residence
$ 171,908
Other Assets
Accounts:
Wachovia 401(k)
$ 124,692
T. Rowe Price 401(k)
119,743
Bombardier 401(k)
88,378
Thrift Savings Plan
54,560
Sub-Total
$ 387,373
Business Investments:
Southside Warehouse, Inc.
$ 19,496
MIC Holdigns, Inc.
2,715
Morales Investments of Jax
12,704
Sub-Total
$ 34,915
84
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
While in private practice, I provided pro bono legal services through Jacksonville Area
Legal Aid. On various occasions I volunteered to conduct screening interviews and to
assist social security claimants by representing them through the administrative hearing
process. I also volunteered to provide pro bono seminars to disabled individuals through
the Jacksonville Center for Independent Living. These seminars focused on informing
the clients of the Center for Independent Living about their rights under the Americans
with Disabilities Act and helping them enter the workforce. I also provided volunteer
services through the Webb Center for Independent Living for Disabled Children.
As noted in paragraph 19(2) above, in 1996, Timothy J. Corrigan (now United States
District Judge Corrigan) and I were asked to serve as inventory attorneys, on a pro bono
basis, for the practice of Jeffrey Mulrain. Mr. Mulrain, a sole practitioner with a
substantia! practice, went into a coma suddenly and died three weeks later. Initially,
Judge Corrigan and I faced this challenge with the optimistic goal of keeping Mr.
Mulrain’s practice going until he could return to work. However, it quickly became
apparent that Mr. Mulrain would not be returning. At that time, it became necessary to
find new representation for all of his clients, particularly those who faced statute of
limitations issues, criminal hearing/trial deadlines and immigration deadlines. A major
factor complicating our mission was the fact that many of Mr. Mulrain’s clients had paid
him in advance to complete their legal work and were unable to pay fees a second time.
Nonetheless, they were in a position of needing prompt representation lest they be
deported or incarcerated. For the benefit of Mr. Mulrain’s wife and young children, we
also wanted to avoid any future claims against the estate. Judge Corrigan and I were
successful in finding pro bono representation for a significant number of Mr. Mulrain’s
clients and were also able to secure representation for all of the remaining clients who
were left in Mr. Mulrain’s practice at the time we were appointed as inventory attorneys.
My duties in this regard extended through the next four years as I continued to assist Mr.
Mulrain’s former clients who called seeking information and documents.
Through my service on the Jacksonville Human Rights Commission, I volunteered to act
as a mediator for fair housing disputes which were handled by the Commission. I also
provided educational presentations to the members of the Commission itself regarding
the obligations of employers under the various federal fair employment laws.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
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invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates -- through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
With the exception of my college sorority (Alpha Omicron Pi; 1984-1987), which limited
its membership to female students, I have not.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
The state of Florida utilizes a Federal Judicial Nominating Commission to recommend
candidates for nomination to the United States District Court. On December 1 5, 2005, 1
submitted an application to the Judicial Nominating Commission indicating my interest
in the position of the United States District Judge, Middle District of Florida. In January
of 2006, 1 was notified that I had been selected for an interview by the Commission. I,
along with approximately ten other applicants, appeared for an interview before the full
Middle District of Florida Commission on January 25, 2006. Shortly thereafter, I was
notified that I, along with three other candidates, had been selected by the Commission to
be recommended for further consideration. Following that recommendation, I was
invited to interview with the Deputy White House Counsel, an Associate White House
Counsel and a representative of the Justice Department. Approximately two weeks later,
I had the privilege of interviewing with the Senators from the state of Florida, Senator
Martinez and Senator Nelson, as well as representatives from their offices. After
completing all nomination paperwork and undergoing a background investigation, I was
informed by the White House that my nomination would be forwarded to the Senate. I
was nominated on June 6, 2006.
4. Has anyone involved iu the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
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judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this “judicial activism” have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
The United States Constitution establishes three separate and distinct branches of
government each with its own roles and responsibilities. The role of the judiciary
is limited in that it is charged with the obligation of resolving cases and
controversies that are properly before the court given its limited jurisdiction.
Accordingly, a judge must exercise restraint and always be cautious to limit any
decision to those issues actually raised by the pleadings and only those issues
properly before the court. In resolving those matters, the role of the judge is to
interpret and apply the law. The basis for such decisions must be found in the
legislative enactments of state and federal governing bodies and prior legal
decisions. Adherence to the rule of law and precedent promotes the stability of
our system of justice and assures against even the inadvertent imposition of the
personal beliefs of a particular judge. Indeed, the phrase “judicial activism” is
often used to describe the failure of a jurist to recognize precedent and the role of
stare decisis. In rendering decisions, a judge is neither permitted nor expected to
formulate policy or provide redress for perceived wrongs not otherwise
recognized by law. Those responsibilities lie with the duly elected members of
the representative branches of our democratic government.
24
I, Marcia Morales Howard, do swear that the
best of my knowledge, true and accurate.
88
Senator DeWine. Judge, thank you very much.
Judge Jarvey?
STATEMENT OF JOHN ALFRED JARVEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA
Judge Jarvey. I would also like to thank the President of the
United States for the nomination and for the trust that he has
shown in my abilities.
I would like to thank Senators Grassley and Harkin for their
support and for their kind, kind comments here today.
I would like to also thank you, Mr. Chairman, for chairing this
hearing, and to Senator Biden for also presiding at the hearing.
I would like to thank the members of the Administrative Office
of the Courts for their longtime support of Magistrate Judges and
Judges of the United States, and for their presence here today.
I would be pleased to introduce members of my family who are
with me today. They include my sister, Carol Hawkins, my neph-
ew, Edmund Hawkins, my brother, William Jarvey, Jr. I am par-
ticularly honored that my father could attend the hearing today.
While the President and the Senate are most immediately re-
sponsible for my opportunity to sit in this chair, it is my mother
and my father that paved the long road, so I am very pleased and
honored that my dad could be here today. My mother is suffering
from a brief, but temporary, illness and could not make it.
My wife and children could not make it today. My kids all just
started college and high school and were just unable to be here on
short notice.
I would like to also thank the Honorable Robert Pratt, Chief
Judge of the Southern District of Iowa, and Southern District of
Iowa Clerk of Court Marjorie Krahn for their attendance. If con-
firmed, I will be honored to serve with them in the Southern Dis-
trict of Iowa.
With that, I have no further comments. Thank you.
[The biographical information of John Jarvey follows:]
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I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
John Alfred Jarvey
2. Address: List current place of residence and office address(es).
Residence: Cedar Rapids, Iowa
Office: 101-lst Street SE, Suite 211 Federal Building, Cedar Rapids, IA 52401
3. Date and place of birth. September 14, 1956; Minneapolis, MN
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(east).
I am married to Mary George Jarvey. Her maiden name was Mary Ann George. She
teaches piano lessons at the Cedar Valley Montessori School, 145 Transit Way, S.E.,
Cedar Rapids, IA 52401
5. Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Drake University School of Law 1978-1981; Doctor of Jurisprudence May 1 6, 1 98 1
University of Akron 1976-1998; Bachelor of Science in Accounting June 1 1, 1978
Concordia College, Moorhead, MN; 1974-1976, No degree awarded
6. Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
October 1987-present: Chief United States Magistrate Judge, United States District
Court, Northern District of Iowa
1993-Present: University of Iowa Law School Trial Advocacy instructor
September 1983-October 1987: United States Department of Justice, Criminal Division
Narcotic and Dangerous Drug Section, Trial Attorney, Washington, D.C.
July 1981-July 1983: Law clerk to the Honorable Donald E. O’Brien, United States
District Court, Northern District of Iowa
7. Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
I have never served in our military.
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8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
I am a member of Beta Gamma Sigma, National Business Honor Society and Beta Alpha
Psi, National Accounting Honor Society
9. Bar Association: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
I was a member of the Iowa State Bar Association from 1981 until 2003. 1 have never
served as an officer in that organization.
I have been a member of the Linn County Bar Association from 1987 to the present. I
have never held office in the Linn County Bar Association.
In 1989 1 was a charter member of the Dean Mason Ladd American Inn of Court and
served as President during the 2000-2001 term.
10. Other Memberships: List ail organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
I am a member of the Federal Magistrate Judges Association, a voluntary organization of
magistrate judges oriented toward improvement of the judicial system.
X am a member of First Lutheran Church in Cedar Rapids and have been since 1987.
11. Court Admission: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
Supreme Court of Iowa, June 26, 1981
United States District Court for the Southern District of Iowa, July 27, 1981
Eighth Circuit Court of Appeals, May 28, 1986
Seventh Circuit Court of Appeals, September 12, 1986
Second Circuit Court of Appeals, March 21, 1986
Eleventh Circuit Court of Appeals, December 2, 1985
I was admitted to these courts for the sole purpose of handling particular
litigation. I assume that all memberships in these courts have lapsed with the
exception of the Supreme Court of Iowa, and the Southern District of Iowa;
12. Published Writings: List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
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I co-authored a section of an internal Department of Justice monograph relating to the
forfeiture of assets associated with money laundering. It is entitled “Investigation and
Prosecution of Illegal Money Laundering; Narcotic and Dangerous Drug Section
Monograph, A Guide to the Bank Secrecy Act." It was published internally at the
Department of Justice in October 1983.
13. Health: What is the present state of your health? List the date of your last physical
examination.
I am in excellent health. The date of my last physical examination was May 31, 2006.
14. Judicial Office: State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Since October 1987 1 have served as Chief United States Magistrate Judge for the
Northern District of Iowa. A magistrate judge is appointed by judges of the district court
after the recommendation of a local committee consisting of five lawyers and two lay
people. The jurisdiction of United States Magistrate Judges extends to all duties,
including trial and judgment, in a civil case when all parties to that case consent to
exercise of jurisdiction by a magistrate judge. In all other cases, the magistrate judge’s
duties pertain to case management, alternative dispute resolution, and discovery matters.
In criminal cases, magistrate judges rule on requests for search warrants and arrest
warrants. Upon arrest of a defendant, magistrate judges hold initial appearance,
arraignments, and all necessary bond and detention proceedings. Magistrate judges
preside over suppression hearings and felony guilty plea proceedings by issuing a report
and recommended decision. Magistrate judges in the Northern District of Iowa also
preside over felony jury selection with the consent of the parties. Finally, magistrate
judges routinely exercise jurisdiction by consent over serious misdemeanors and have
plenary power to resolve minor federal criminal offenses such as infractions and non-
serious misdemeanors.
15. Citations: If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
(1) Citations for Most Significant Opinions Written
(in chronological order)
Arthur Killinger v. State of Iowa . C96-2042 (N.D. Iowa, March 1999).
In this Report and Recommendation, the court analyzes the concept of
procedural default and whether the state court properly instructed the jury
in a murder case on the issue of felony murder. The case was affirmed on
appeal at Killinger v. Iowa . 2 Fed. Appx. 698 (8th Cir. 2001).
United States v. Gerald W, Oliver . CR99-0010 (N.D, Iowa, March 2000).
In this case, a Native American moved to dismiss the indictment against
him in which it is alleged he illegally possessed bald eagles. The
defendant contended that the statute prohibiting this possession violated
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his rights under the Religious Freedom Restoration Act. The case was
affirmed on appeal at United States v. Gerald Oliver. 255 F.3d 588 (8th
Cir. 2001).
General Casualty Ins. Co. v. Exterior Sheet Metal. Inc. . C01-2085 (N.D.
Iowa, Dec. 2002).
In this case, the court found that there could be insurance coverage for the
negligent installation of the roof at a college sporting facility. This was a
particularly complex insurance dispute. Following the denial of the
motion for summary judgment, the case was tried and the court found that
there was partial insurance coverage for some of the damage caused by a
negligently-constructed roof. The case was not appealed.
John O. Hammons Hotels. Inc, v. Acorn Window Systems. Inc., C01-0151
(N.D. Iowa, Oct. 15,2003).
This was a complex case alleging the installation of defective window
systems at a large hotel. Motion for summary judgment was granted for
the defendant on statute of limitations grounds, rejecting plaintiff s
assertion of the discovery rule. The case was affirmed. John Q.
Hammons Hotels v. Acorn Window Systems. Inc.. 394 F.3d 607 (8th Cir.
2005).
Kratzer v. Rockwell Collins et al. . C02-01 10 (N.D. Iowa, Dec. 2003).
Summary judgment granted to employer in Americans With Disabilities
Act case. Case discusses plaintiffs burden to request reasonable
accommodation and the interactive process that must ensue between the
employer and employee. Case affirmed on appeal. Kratzer v. Rockwell
Collins. 398 F.3d 1040 (8th Cir. 2005).
Andrews et al v. City of West Branch . C03-0009 (N.D. Iowa, Dec. 7,
2004) .
In this case, the court granted summary judgment on qualified immunity
grounds to a City whose police officer negligently shot a dog. This case is
currently on appeal to the Eighth Circuit Court of Appeals.
United States v. Flovd Neal. CR97-2012 (N.D. Iowa, Jan. 24 2005).
Motion to modify guideline sentence pursuant to U.S.S.G. § 1B1.10 for
guideline ranges lowered as a result of an amendment to the Guideline
Manual. Motion to modify sentence denied. Report and
Recommendation adopted by the District Court June 1, 2005. No appeal
was taken.
United States v. Johnny Rav McAtee . CR05-2005 (N.D. Iowa, June 2,
2005) .
In this Report and Recommendation, the court analyzes probable cause for
a search warrant, issues regarding execution of the warrant, and the
defendant’s motion for severance. It is typical of the quality of my work.
The Report and Recommendation was adopted by the District Court. The
case is currently on appeal to the Eighth Circuit Court of Appeals.
Highway Equipment Company, Inc, v. FECO Ltd. . C03-0076 (N.D. Iowa,
July 27, 2005).
This order denies the defendant’s motions for attorney fees after
prevailing in this patent infringement case. The court found that the case
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93
did not present the exceptional circumstances necessary for an award of
attorney fees. This case is currently on appeal to the Federal Circuit.
Northeast Iowa Ethanol LLC v. Jerry Drizin . C03-2021 (N.D. Iowa, Feb.
7, 2006).
Following a trial on the merits, the court awarded $3.8 million in
compensatory damages and $7.6 million in punitive damages to an
investment adviser who misappropriated $3.8 million in security for a loan
for the creation of a northeast Iowa Ethanol plant. The case is currently
on appeal to the Eighth Circuit Court of Appeals.
(2) Citations for Appellate Opinions Reversed
Moorman v. Thalacker. 83 F.3d 970 (8th Cir. 1996).
In this case, a prisoner was significantly punished for violating prisoner
rules forbidding conduct that constituted a felony under state or federal
law. The rales also prohibited any attempt or complicity in felony
behavior. The inmate was overheard by a prison guard indicating his
intent to obtain a gun upon release from prison. I found that a simple
statement of intent to acquire a gun was not an “attempt” to commit a
felony, especially in light of the fact that the prisoner was in custody at the
time. The Court of Appeals held that the law of “attempt” is complex and
fraught with intricacies and doctrinal divergences. The defendants were
entitled to qualified immunity.
Lundell Mfg Co.. Inc, v. American Broadcasting Companies. Inc. . 98 F.3d
351 (8th Cir. 1996).
This is a libel case brought against ABC News for airing a story about a
garbage recycling machine manufactured by the plaintiff and used in
Georgia. When the news report indicated that the machine “did not
work,” the plaintiff sued for libel. This court found the statement either to
be true or to be an expression of opinion, both of which were protected
under the First Amendment in matters relating to public concern (The
garbage recycling machine was used by a county and the news story was
part of a series concerning wasteful governmental expenditures.). The
Court of Appeals found that the statement that the machine “did not work”
was capable of different meanings and it was up to the jury to determine
the meaning conveyed by the story. I set aside an approximately $ 1
million award to the plaintiff and it was reinstated upon appeal.
Rail Intermodal Specialists v. General Electric Capital Corp . 103 F.3d 627
(8th Cir. 1996).
In this case, a venture capitalist was found responsible to a transportation
company that brokered the placement of trucks on flatbed railroad cars.
The jury found that GE Capital had interfered with Rail Intermodal’ s
contract with the Chicago Central and Pacific Railroad. The Court of
Appeals did not believe that the defendant’s conduct satisfied the stringent
requirements for Iowa’s tort of intentional interference of contractual
relations. The Court of Appeals’ decision was later withdrawn and the
parties settled the case.
Vandelune v. 4B Elevator Components Unlimited . 148 F.3d 943 (8th Cir.
1998).
In this products liability case, I was affirmed in granting summary
judgment for one manufacturer in a grain elevator explosion case. I was
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reversed for denying a motion to dismiss for lack of personal jurisdiction.
The personal jurisdiction issue related to the showing that a plaintiff must
make to secure personal jurisdiction over a defendant who places products
in the “stream of commerce” and arrives in the forum state on an
attenuated, random or fortuitous basis.
Hollv Cox v. Dubuque Bank & Trust . 163 F.3d 492 (8th Cir. 1998).
In this age discrimination case, the jury found in favor of the plaintiff and
against the defendant bank. Part of the plaintiffs evidence was a repeated
and unnecessary series of questions as to when the plaintiff intended to
retire. The defendant proposed a jury instruction indicating that inquiries
from an employer to an employee concerning the employee’s intention to
retire could not be evidence of age discrimination. I refused to give that
instruction. The case was reversed for that reason and remanded for a new
trial. The parties settled the case prior to retrial.
Trobaueh v. Hall. 176 F.3d 1087 (8th Cir. 1999).
An inmate at the Linn County Jail was placed in administrative
segregation for filing excess grievances. The defendants immediately
admitted liability. The plaintiff had wrongfully suffered three days of
administrative segregation but had no physical injuries, I awarded $1 in
nominal damages. The Eighth Circuit Court of Appeals reversed
suggesting that the appropriate range of damages was in the vicinity of
$100 per day for each of the three days. This court Was further requested
to consider awarding punitive damages against defendant Hall. Upon
remand, I awarded $300 in damages but denied the request for punitive
damages.
United States v. Michael James Knight . 306 F.3d 534 (8th Cir. 2002).
This case arose out of a traffic stop of a trucker on Interstate Highway 80
in Iowa. As a part of an administrative trucking inspection, a police
officer found a gun in the defendant’s briefcase. I found that it was a
proper administrative search pursuant to New York v. Burger . 482 U.S.
691 (1987). On July 30, 2001, the Honorable Michael J. Melloy adopted
my Report and Recommendation. The case was reversed on appeal.
Andreas v. Volkswagen of America. Inc. . 336 F.3d 789 (8th Cir. 2003).
This is a copyright infringement case in which Audi’s advertising agency
misappropriated a sentence from a work created by the plaintiff and used
it as a part of a commercial to launch a campaign to sell Audi’s TT
vehicle. Following a jury trial, I set aside the jury’s $570,000 award of
Audi profits based on caselaw indicating that the manufacturer’s revenue
in an “indirect profit” case could not be established by speculative
evidence. The Court of Appeals held that the jury had a non-speculative
basis for concluding that the copyrighted words contributed to the sale of
automobiles. The award of Audi profits was reinstated on appeal.
United States v. Craig Sanders. 424 F.3d 768 (8th Cir. 2005).
This case arose out of the warrantless search of the defendant’s person and
hotel room at which the police found controlled substances, money, and
drug paraphernalia. This court concluded that the defendant expressed his
consent to the search. On appeal, the Eighth Circuit Court of Appeals
found that the defendant withdrew his consent.
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I have some recollection that another report and recommendation from our Western
Division was adopted by the District Court but reversed on appeal. I have been unable to
remember or to locate a copy of that decision.
(3) Citations for Significant Opinions on Federal or State Constitutional
Issues
CIVIL CASES
Steven Radloff v. City of Oelwein. et al . C02-2029 (N.D. Iowa, May 19,
2003).
This is an excessive force case where police made a warrantless entry into
a residence to arrest individuals they observed to be committing
misdemeanors (underage drinking). The issues concerning the right of the
police to enter a home under these circumstances and their entitlement to
qualified immunity are discussed at length in this opinion.
Michael Cook v. City of Elkader. et al . C03-1029 (N.D. Iowa, Jan. 21,
2005).
This is an employment discrimination case brought against a municipality.
The plaintiff contends that the termination of his employment violated his
right to substantive due process. He further claimed that he was retaliated
against for exercising First Amendment rights.
Jack Oswald v. Waterloo Board of Education . C02-2050 (N.D. Iowa, Sept.
22, 2003).
At issue in this case is the due process rights of a teacher who was given a
two-day suspension without pay. The other issue is whether a teacher has
the right to confront and cross-examine all persons who have provided
information used to support the discipline. I found that there was no right
to due process in the context of very minor discipline such as this.
CRIMINAL CASES
United States v. Michael Thomas Catena and Carla Grace Eneler . CR05-
1021 (Report & Recommendation) (N.D. Iowa, Sept. 22, 2005).
This Report and Recommendation has a lengthy discussion of the plain
view exception to the search warrant requirement, the showing necessary
to support probable cause for a warrant and inventory searches.
United States v. Anthony Tyrone Thomas . CR05-0016 (Report and
Recommendation) (N.D. Iowa, June 9, 2005).
This case addresses the validity of a warrantless search of a probationer’s
residence and the issue of abandonment under the Fourth Amendment to
the United States Constitution.
United States v. Michael J. Vandenberg . CR05-1015 (Report and
Recommendation) (N.D. Iowa, June 6, 2005).
This Report and Recommendation discusses the issue of whether the
defendant was “in custody” for purposes of getting Miranda warnings. It
further discusses the voluntariness of the defendant’s confession.
United States v. Thomas Alfred Brvdon . CR04-0103 (Report and
Recommendation) (N.D. Iowa, May 20, 2005).
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This Report and Recommendation discusses the voluntariness of consent,
the plain view exception to the warrant requirement, and the legitimacy of
a protective sweep search.
United States v. Denise Gail Kimball . CR03-1025 (Report and
Recommendation) (N.D. Iowa, Mar. 23, 2004).
Competence to stand trial and forced administration of psychotropic
medication.
United States v. Lonnie Maurice Hill . CR03-0081 (Report and
Recommendation) (N.D. Iowa, Oct. 17, 2003).
This case discusses whether the defendant had a reasonable expectation of
privacy in a public bathroom and whether the act of inserting the key into
a lock constitutes a “search” within the meaning of the Fourth Amendment
to the United States Constitution.
16. Public Office: State (chronologically) any public offices you have held, other than
judicial offices, including the terms of serve and whether such positions were elected
or appointed. State (chronologically) any unsuccessful candidacies for elective
public office.
I have held no other public office other than Magistrate Judge for the Northern District of
Iowa. As noted above, I served in the United States Department of Justice as a trial
attorney and I was a law clerk for a United States District Court Judge.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
Law clerk to the Honorable Donald E. O’Brien, United States District
Court, Northern District of Iowa; July 1981-Juiy 1983.
2. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
3. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
October 1987-present: Chief United States Magistrate Judge, United
States District Court, Northern District of Iowa
United States Department of Justice, Washington, D.C., Criminal Division
Narcotics and Dangerous Drug Section, trial attorney; September 1983-
September 1987. At the Department of Justice, I was a trial attorney. I
tried federal controlled substances, tax evasion, money laundering,
firearms, and other cases relating to the trafficking in controlled
substances.
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b. 1. What has been the general character of your law practice, dividing it
into periods with dates if its character has changed over the years?
As a law clerk, I researched matters pending before the court and
provided draft opinions for Judge O’Brien. At the United States
Department of Justice, I prosecuted traffickers of controlled substances
and money launderers. As a United States Magistrate Judge, I have
presided over a wide range of civil and criminal cases. I have tried cases
involving personal injury, employment discrimination and other employee
rights, patents, copyrights, and other complex commercial disputes.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
At the Department of Justice, I developed a specialty involving the
prosecution of doctors and pharmacists engaged in pharmaceutical drug
diversion. I also developed considerable expertise in the area of wire
tapping. Finally, I tried many trials and developed a general expertise in
litigation,
c. 1. Did you appear in court frequently, occasionally or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving the dates.
As an attorney, I appeared in federal courts very frequently. While
serving in the District of Columbia, I appeared nearly every day in court.
In other busy courts such as the Southern District of Miami, I appeared
every week in court. "When I had a complex investigation such as one case
I had in the Southern District of Iowa, I may have spent as much as five
months preparing for trial and approximately one month trying the case.
2. What percentage of these appearances was in:
(a) federal courts: 100%
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
Nearly 100% of my litigation was criminal. I gave some
assistance to the Drug Enforcement Administration by
representing it in the civil appeal of a doctor whose
registration to dispense controlled substances was
suspended by the DEA.
4. State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
9
98
As a Special Assistant United States Attorney in the District of Columbia
in 1984, 1 tried over ten jury trials and numerous non-jury trials in that
capacity’. I tried many cases in the United States District Court for the
Southern District of Florida. I tried two cases in the United States Distr ict
Court for the Southern District of Indiana. I tried one very lengthy trial in
the Southern District of Iowa. I tried one case in the District of Arizona. I
indicted a number of cases in the Eastern District of Pennsylvania.
Several of these cases went to trial but none of them went to verdict as the
defendants decided to plead guilty before the trial was completed.
5. What percentage of these trials was:
(a) jury: 90%
(b) non-jury. 10%
18. Litigation: Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before whom the
case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
1. United States v. Norma J. Crabtree, et al- (S.D. Ind.). United States v. Billy
Roach, et ah. CR84-0016 (S.D. Ind.).
These are two complex cases arising out of numerous wiretaps conducted at a
pharmacy in Indianapolis. I began working on this case in June of 1 984, shortly
after the wiretaps had been completed and the pharmacist. Sterling Litiskas, had
agreed to cooperate and plead guilty. I worked this case with Assistant United
States Attorney Kennard Foster (currently a United States Magistrate Judge) and
obtained convictions on all of the street-level dealers. As a part of this
prosecution, I tried the case of United States v. Jerry Whalev in Case No. CR84-
0017. The first trial resulted in a hung jury. The defendant was then arraigned on
a superseding indictment with additional information that we learned in the first
trial and convicted of all crimes charged. This particularly violent defendant was
sentenced to a 15-year term of imprisonment by the Honorable William E.
Steckler. I also successfully argued the appeal. United States v. Whalev . 830 F.2d
1469 (7th Cir. 1987) (Note: My name was incorrectly spelled in that opinion.).
Defendant Whaley was represented by Allan Yacky of Indianapolis on Appeal.
2. William H. Carranza. M.D. v. Drug Enforcement Administration . 86-4015 (2d
Cir. 1986).
This case challenged the ability of the Drug Enforcement Administration to deny
a registration to dispense controlled substances to a physician with a long-
standing drug problem. I successfully argued the appeal and defended the Drug
10
99
Enforcement Administration’s position. The decision was an unpublished
memorandum decision. Carranza v. PEA . 792 F.2d 136 (2dCir. 1986). The
appellant was represented by Louis M. Freeman, 233 Broadway, Suite 3201 NY,
NY 10279.
3. United States v. Bunsong. 85-395-CR-JCP (S.D. Fla. 1985).
I prosecuted this case in the Southern District of Florida in late 1985. The
defendant and his co-conspirator brought four pounds of pure heroin from
Thailand to the United States. They stopped briefly in Miami before going to the
Bahamas to cut the heroin. They were caught in the Bahamas but the heroin was
stolen from a Bahamian police evidence locker shortly after it was tested by a
Bahamian chemist. I convicted both defendants despite this significant obstacle.
They were sentenced and ultimately cooperated in an even larger heroin
importation investigation. The case was tried in federal court in West Palm
Beach before the Honorable James C. Paine. I did not argue the appeal.
Affirmed. United States v. Bunsong . 795 F.2d 87 (1 1th Cir. 1986) (Table). The
defendants were represented by David Shenkman and Paul Korchin of Miami.
4. United States v. Amel Lueth et al . Criminal No. 85-8, (S.D. Iowa). Affirmed.
United States v. Lueth . 807 F.2d 719 (8th Cir. 1986).
In this case, I indicted 16 drug traffickers in the Southern District of Iowa for drug
and income tax violations. The case resulted in the first Continuing Criminal
Enterprise (21 U.S.C. § 848) conviction in the State of Iowa. The case was also
made complex by the joint trial of 14 defendants. I tried the case together with an
Assistant United States Attorney from the Southern District of Iowa, Ronald
Kayser (currently an Administrative Law Judge for Social Security). The case
was indicted in January 1985 and tried during the month of June 1985. The trial
was before the Honorable Harold D. Vietor in the Southern District of Iowa. I
was given a Justice Department award for my handling of this case. I argued the
appeal.
The following attorneys represented defendants in the trial before Judge Vietor:
Mark Pennington 515-288-3339; Paul Rosenberg 515-245-3828; Lawrence
Scalise 515-244-3500; J.C. Salvo 712-755-3141; James Murphy-telephone
number unknown; William Gallup 402-341-0700; Greg Schatz 402-330-1221;
Don Nickerson 515-286-3391; David Shinkle 515-244-6821; Donald Kleine 402-
444-7040; John Reefe 402-346-0666; William White, Austin, Tx-telephone
number unknown; Paul Zoss 7 1 2-23 3-392 1 .
5. United States v. Andrew David Griffith. John Dover, and William Pillow .
No. 86CR8015 (S.D. Fla.).
This case was prosecuted in the Southern District of Florida during the summer
and fall of 1986. This difficult case involved the prosecution of a commercial
airline pilot, other pilots, a mechanic, and the owner of a large range in the
Southern District of Florida. This group was responsible for the importation of
many loads of cocaine and marijuana from South America. The group would fly
King Air and Queen Air aircraft between South Florida and Colombia. It was a
particularly difficult case because the events had transpired several years before
our investigation commenced. I worked on this difficult case with Assistant
United States Attorney Karen Atkinson. All defendants were convicted pursuant
to their plea agreements. The Judge was the Honorable Norman Roettger. Griffin
was represented by Bryce Lyons of Ft. Lauderdale. Dover was represented by
Joel Hirschhom of Miami. Dillow was represented by Ross Zimmerman of
Ft. Lauderdale.
11
100
6. United States v, Dante Bevilacqua . 87-CR-321 (E,D. Pa.).
In 1987 1 prosecuted Dr. Dante Bevilacqua. Dr. Bevilacqua had a sophisticated
scheme to sell potent pharmaceutical amphetamines to street dealers using the
“front” of a weight loss clinic. In that case, we calculated that Dr. Bevilacqua
was illegally dispensing 3% of the nation’s supply of Preludin. This was a very
early case that used computers for the sorting and analysis of an extremely high
volume of data derived from Dr. Bevilacqua’s prescriptions. Ultimately, he
agreed to plead guilty and received a ten-year sentence for illegal drug
distribution.
7. United States v. John Drummond, et al . CR85-169 (D. Ariz.).
This case was prosecuted in the District of Arizona. Co-counsel was AUSA Stan
Patched. It involved an extremely large conspiracy that imported five tons of
cocaine into the United States. The last shipment of approximately one ton of
cocaine was seized by law enforcement officials. John Drummond had contact
with Mexican (Miguel Felix-Angel) and Honduran (Juan Ramon Mata-
Ballesteros) Cartel affiliates. The American conspirators were immediately
caught. Eventually all of them pleaded guilty with the exception of George
Krasovich. I tried the Krasovich case before the Honorable William Browning.
Mr. Krasovich was convicted. His conviction was reversed on appeal by the
Ninth Circuit Court of Appeals. The defendant was represented by Assistant
Public Defender Pamela Franks (currently an Arizona State District Court Judge).
This is the only defendant I prosecuted whose conviction was reversed on appeal.
United States v. Krasovich . 819 F.2d 253 (9th Cir. 1987).
8. United States v. Willie James Roberts. CR187-19 (S.D. Ga., 1987).
Wiretapping conducted before I entered the case revealed a large crack cocaine
distribution network in Augusta, Georgia, and North Augusta, South Carolina. I
was brought into this case by Assistant United States Attorney Leon Barfield
(now United States Magistrate Judge) to defend the wiretaps at the suppression
hearing and to present the wiretap evidence at trial. I successfully defended the
wiretap at a suppression hearing conducted by United States Magistrate John
Dunsmore. I became a United States Magistrate Judge shortly before this matter
went to trial.
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
In 1986, 1 was selected to go to Lima, Peru, and give a seminar for members of
the Peru Supreme Court, Executive and Legislative Branch, on American drug
prosecutions. At this time, the United States was attempting to get other nations to
extradite their own nationals (i.e., to get Peru to be willing to extradite Peruvian citizens
to the United States). Peruvian officials were very concerned about the kinds of crimes
for which Peruvians would be extradited. Another attorney and I spoke for 2- 1/2 days on
the protections afforded by the judicial system, drug prosecutions, conspiracy law.
Racketeer Influenced Corrupt Organization (RICO) prosecutions, and other topics.
I have always been active in teaching the law to others. While I was with the
Justice Department, I served as an instructor at the Department of Justice’s Advocacy
Institute and FBI Academy at Quantico, Virginia. I have since been a guest judge at the
Department of Justice’s National Advocacy Center at the University of South Carolina. I
12
101
have taught Trial Advocacy at the University of Iowa since 1993 (one class each year). I
have coached the Washington High School mock trial team in Cedar Rapids for the past
five years. Before that, I served as coach of the McKinley Middle School mock trial
team in Cedar Rapids.
I have devoted tremendous effort as a judge to the area of alternative dispute
resolution. I have conducted over 400 mediations and I resolve approximately 80% of
the cases that come before me for mediation. I am considered one of Iowa’s most
successful mediators. I believe in the importance of offering alternative dispute
resolution and the satisfaction that litigants receive by resolving their own problems.
13
102
n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
I will not derive anything from any of the types of arrangements identified in this
question.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
I post the identity of my investments on our court website. We direct litigants to file
statements identifying corporations and other entities related to the named parties in their
case. Our Clerk of Court screens cases assigned to the judge for potential conflicts of
interest and the parties have this information available for their own use. I believe the
Southern District of Iowa has the same system. It works very well. I follow, and will
continue to follow, the Code of Conduct for United States Judges and all applicable
statutes, policies and procedures.
More importantly, I conduct my affairs to avoid potential conflicts of interest. Rather
than purchasing individual shares of stock, I purchase mutual funds that do not present
conflicts of interest. For the past several years, I have purchased mutual funds
administered by only one company to further reduce the number of potential conflicts of
interest. As a result, I believe that there are no categories of litigation or any financial
arrangements that are likely to present potential conflicts of interest during my tenure as a
judge.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
Yes. I intend to continue to teach classes at the University of Iowa School of Law and
give seminars at the Drake University School of Law. The compensation for these
activities is modest (I am paid $3000 to teach a class at the University of Iowa and $900
to give an annual lecture at Drake University).
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
14
103
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached Net Worth Statement
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
15
104
AO 10
Rev. mm
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
In Government Act of 197S
(5us.c.app.§$m-m)
I. Ptr*o* Reportiai <1ut «»n*e, ftrrt, middle iaitial}
Jarvey, John A
2. Court or Orgaalrattea
NDiA
J. Date of Report
07/24/2006
4. TMe (Article UI jadft* kmikate active or easier etatsa;
magktrtU judge* Udkate fuD- *r pert-Omc)
District Judge Nominee
5a. Report Type (check appropriate type)
g Nomuutwa, DMe 06/28/2006
Q Initial Q Anauel Q Final
4. Reportiag Period
01/01/2005
to
06/30/2006
5b. Amended Report
7, Chambers or Office Addrtu
101-tst Street SE
21 1 Federal Building
Cedar Rapids, Iowa 5240 1
t. 0« the but* of the iafermadaa contained la tklr Report end aay
modUkatbu pertaiaiag thereto, tt b, la my eplnloa, fas campHance
with apptkable Uwi and regal* tiona.
IMPORTANT NOTES: The Instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for tack peri where you have no reports bit information. Sign on Iasi page.
L POSITIONS. (Reporting MMduelanfy; see pp.9-1 3 ef instructions.)
[x~| NONE (No reportable positions.)
F.0SITIQN NAME QF QRGAN1ZATIQN/ENXIXY.
II. ■ AGREEMENTS. (Reporting buRvUmti enfyt tee pp. 14-16 of instructions.)
l x ) NONE (No reportable agreements.)
DATE
105
FINANCIAL DISCLOSURE REPORT
Name of Pens* Rqwrtiaj
Date of Report
Page 2 of 6
Jtrvey, John A
07/24/2006
III. NON-INVESTMENT INCOME. (Reporting IndMiual end spouse; see pp 17-24 af Instructions.)
A. Filer's Non-Investment Income
j | NONE (No reportable non-investment income.)
DATE
SOI IRCR AND TYPE
INCOME
(yours, not spouse's)
I. Sept 05
University of Iowa - College of Law
$3,000
2. Dec 05
Drake University School of Law
$900
3, May 2006
University of Iowa - College of Law
$3,000
4.
5.
B. Spouse's Non-Investment Income - If you were married 4uri*t any portion of As reporting year, compute Ah section.
(Dollar amount not required except for honoraria.)
| | NONE (No reportable non-investment income.)
DATE SOURCE AND TYPE
1. 2005-2006 Self-Employment Piano Teacher
2 .
IV • REIMBURSEMENTS — treutspoeladost, lodging, food, enUriainmeni.
(Includes those to spouse and dependent children. Seepp. 23-27 of Instructions.)
| | NONE (No reportable reimbursements.)
SOURCE
106
FINANCIAL DISCLOSURE REPORT
Page 3 of 6
Name sf Pfrcen Reporting
J»rvey, John A
D»W »f Report
07/24/2006.
V « GIFTS, (Includes thou to spout* end dependent ckildrtn. See pp. 79-SI of instructions.)
I ) NONE (No reportable gifts.)
SOURCE
DESCRIPTION
VALUE
1. Exempt
2 .
3.
4.
5.
VI, LIABILITIES. (Includes (host of tpous* end dependent children. Set pp. 32-34 of UutmctlonxJ
pc] NONE (No reportable liabilities.)
CKEDiTOR PESCRIElIQa
i.
VALUE COPE
107
FINANCIAL DISCLOSURE REPORT
Name *f Person Reporting
Date of Report
Page 4 of 6
Jarvey, John A
07/24/2006
VII. INVESTMENTS and TRUSTS - tneame, raltu, transaction (Induda those of the spous< and dependent chOdrtn. Seepp. M-57 of flUng instructions)
! | NONE (No reportable income, assets, or transactions.)
1. Lcgg Mason Put Fundamental Value
Fund Class A-See Part VIII
B
Dividend
K
T
Exempt
2. Family Trust-See Part VIII
A
Appreciation
K
R
3. Legg Mason Partners Cap, Growth Fund
Class B-Se« Part VIII
B
Dividend
■
■
4. Legg Mason Part Large Cap. Growth
Fund Class A-See Part VIII
A
Dividend
i
T
5. Legg Mason Partn Social Awareness
Fund Class A-Sce Part VIH
A
Dividend
m
■
6. Legg Mason Partn Social Awareness
Fund Class 8 -See Part VIII
A
Dividend
a
a
7. Legg Mason Part Fundamental Value
Fund Class A-See Part Vm
A
Dividend
j
T
8. Legg Mason Part Large Cap. Growth
Fund Class B-See Part VIII
A
Dividend
i
T
9. Legg Mason Partn Social Awareness
Fund Class A-See Part Vm
A
Dividend
j
T
1 0. Firstar Bank-Self & Spouse Checking
Account
A
Interest
j
T
1 1. Firstar Bank-Self & Spouse Savings
Account
A
Interest
M
T
12.
13.
14.
15.
16,
1?1
1. Income Oa in Coda:
(See Column. Bt nd 04)
2. Vrfse Cadet
(See Cohwmj Cl >nd DJ)
3. V»tw Method Code*
(See Column C5)
A -51.000 or km
F -*50,00) -*100,000
J -S 15, 000 or Sen
N -5250,001 - J 500,000
P3 -R«K)0.001 - *50,000.000
B-5I.0O1 -52,503
G -1100,001 -*1,000,000
K -515,001 -150,000
0-1500,001 -$1,000,000
R -Co* (Reel Estate Only)
V -Other
C -42^01 -15,000
HI -*1,000,001 - 15,000,000
L -*50,001- *100,000
PI -11,000,001 -15,000,000
M -More tbin 550,000, 003
D -45,00! -115.000
K2 -More than $5,000,000
M -5100,001 -1250,000
n -*5,000,001 - *25,000,000
T -Cub Motet
E-S1S.00! -*50.000
U -Book Value
W -Entailed
108
FINANCIAL DISCLOSURE REPORT
Name of Ptraoo Repeidag
Date of Report
Page 5 of 6
Jarvey, John A
07/24/2006
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS.
Pint in .A. - Additional non-investment income was received by filer as United States Government salary fix services as > United States Magistrate lodge.
All From Part VH;
1. John IRA-Mutual Funds
2. The only asset in this trast is a residence located in Maple Grove, MN. The asset was gifted to the trust on July 9, 2003 by my parents but the trust pays a
mortgage on the residence and I fund 1/5 of the mortgage payments. The purchase price of the residence was $320,000. The mortgage is for $120,000. Therefore,
my interest fa the Family Trust is ($320,000 minus $ 120,000) divided by 5 or $40,000. I am not aware of any appreciation in its value.
3. John IRA-Mutual Funds
4. John IRA-Mutual Funds
5. John IRA-Mutual Funds
6. John IRA-Mutual Funds
7. Spouse IRA-Matual Funds
8. Spouse IRA-Mutual Funds
9 . Spouse IRA-Mutual Funds
Part VU - The Mutual funds listed in this section an changed names in 2006. The name changed from "Smith Barney [Mutual Fund}" to "Legg Mason Partners
{Mutual Fund]."
FINANCIAL DISCLOSURE REPORT
Name of Person Reporhag
Date af Report
Page 6 of 6
Jarvey, John A
07/24/2006
IX. CERTIFICATION.
1 certify that all information given above (Including information pertaining to my spouse and minor or dependent children, If any) is
accurate, true, and complete to the best of my knowledge and belief, and that any inform* don not reported was withheld because It met applicable statutory
provtrious permitting non-dlsdosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been reported are In
compliance with the provisions of $ U.S.C. app. J 501 et seq, 5 VS.C. § 7353, and Judicial Conference regulations.
Signature^
AND CRIMINAL SANCTIONS (5 US. C. app. f 104)
WILFULLY FALSIFIES OR FAILS TO FILE
too ls
REPORT MAY BE SUBJECT TO CIVIL
FILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N.E.
Washington, D.C. 20544
109
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
110
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Real Estate Owned
Personal residence $ 400,000
Real Estate Mortgages Payable
Personal residence $ 151,000
Ill
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfdl these responsibilities, listing
specific instances and the amount of time devoted to each.
As a federal magistrate judge, I am prohibited from representing anyone or taking on
work outside my judicial responsibilities other than teaching and public speaking. My
government employment for the past 25 years has prohibited me from engaging in pro
bono legal work.
I do, however, serve the disadvantaged. Over the past five years I have been part of a
team at my church assisting the poor by serving a free meal on Saturday evenings in our
church basement. I have also devoted a tremendous amount of time over the past 1 8
years to assisting in our schools. Children from disadvantaged circumstances make up a
significant percentage of the student body in schools that my children attend. I have
devoted substantial time to reading and other programs that are designed to give those
children additional assistance. I was named “Volunteer of the Year” in 2005 at
McKinley Middle School in Cedar Rapids.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates — through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What have you done to
try to change these policies?
I have never belonged to any organization that discriminates on the basis of race, sex, or
religion. I have never belonged to a country club or other social club.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
There is a selection committee in Iowa that assists the White House in nominating
qualified individuals for positions in federal courts. While the process of deliberating on
candidates is not made public, I believe that the selection commission recommended my
nomination.
My experience with the judicial selection process demonstrated to me that the committee
was looking to recommend the best candidate possible. I have been unsuccessful on
other occasions but I have nothing but respect for this committee. All of their questions
focus on the candidates’ background, proposed solutions to existing court problems, and
other appropriate topics.
Candidates were publicly solicited through a press release from Senator Grassley. As I
understand it, all applicants were interviewed by the selection committee. Some were
16
112
interviewed by telephone to accommodate serious logistical problems. Most were
interviewed personally. Within approximately two weeks. Senator Grassley publicly
identified three candidates whose names would be forwarded to the White House for its
consideration. One week after my name was submitted to the White House, I was
interviewed by representatives of the White House and the Department of Justice. Again,
appropriate questions concerning fitness for office, qualifications, and plans were asked.
4, Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No one asked any question that could reasonably be interpreted as asking how I would
rule on any case, issue or question.
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch and usurped many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
I believe that I have always respected the separation of powers identified in our United
States Constitution which has served this country so well. I fully appreciate the function
of the Legislature to represent the will of the nation when laws are enacted. I further
appreciate the function of the Executive Branch to determine the most appropriate way to
enforce those laws. Finally, I recognize the judiciary as the co-equal branch charged with
the ultimate responsibility for interpreting the laws and Constitution of the United States.
Where laws created by the Legislature are clear and unambiguous on their face, the role
of the judiciary is simply to apply them. Where those laws are ambiguous, the courts
have tools that can reasonably resolve those ambiguities. Legislative history is often a
fertile place in which to find the Legislature’s intent. As a trial judge I am bound to
follow precedent from my Circuit Court of Appeals in the United States Supreme Court.
17
113
AFFIDAVIT
I, John A. Jarvey, do swear that the information provided in this statement is, to the
best of my knowledge, true and accurate.
Karolyn K. Stigler, Deputy Clerk of Court
United States District Court
Northern District of Iowa
114
Senator DeWine. Judge, thank you very much.
Judge Lioi?
STATEMENT OF SARA ELIZABETH LIOI, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge Lioi. Thank you, Mr. Chairman. I have no opening state-
ment. However, I would like to thank the Chair for conducting this
hearing today. I would like to thank Senator Biden for his pres-
ence.
I would also like to thank the President for nominating me, and
you, Senator DeWine and Senator Voinovich, for your very kind
and gracious words and your support of me throughout this proc-
ess.
I do have some family members and friends here today and I
would like to introduce them at this time. My mother, Rosaria, is
here with us today. I consider that a blessing. She spent quite a
few months in the hospital earlier this year and I feel very blessed
that she was able to make the trip.
Also, two of my sisters, Carmela Lioi and Germann are with us
today, and my cousin, Helen Garofalo. I also have some very dear
friends of mine, Diana Pittman, Judge Michael Howard, and Tim
and Debby Bentivegna. I thank them for their attendance here
today as well.
[The biographical information of Sara Lioi follows:]
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I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used).
Sara Elizabeth Lioi
2 . Address: List current place of residence and office address(es).
Residence: Canton, OH
Office address: Stark County Courthouse, 115 Central Plaza, North, Canton, OH 44702
3. Date and place of birth.
December 17, 1960 - Canton, OH
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es).
Single
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
The Ohio State University College of Law
Attended: 8/84 - 5/87; Degree received: Juris Doctor - 5/87
The University of Oxford, Oxford, England and the Department of External Studies, The
Ohio State University, Summer Pre-Law Program in Oxford (1984)
Attended: 7/84 - 8/84; No degree received
The University of Akron
Department of External Studies - Computer class
Attended: 1/84 - 3/84; No degree received
The University of Virginia
Attended: 8/83 - 1 1/83; No degree received
Bowling Green State University
Attended: 9/79 - 5/83; Degree received: Bachelor of Arts, summa cum laude - 5/83
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6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
Stark County Common Pleas Court - General Division
Day, Ketterer, Raley, Wright & Rybolt, Ltd.
I was hired by the firm as an associate in the fall of 1987, and was elected a principal of
the firm in December 1993.
The Ohio State University College of Law (employment during law school)
Law Library Worker
Legal Writing and Research Advisor
Research Assistant
Manchester, Bennett, Powers and Ullman (Law Firm)
Summer Intern - Summer of 1986
Appalachian Exploration, Inc. (1983)
Assisted contract manager and aided in special projects
[Note: I served on the boards of the organizations listed in below, but I was not an employee
of these organizations, nor did I receive any remuneration for my service on these boards, the
vast majority of which were not-for-profit.]
Plain Local Schools Foundation (director, currently serve on board)
Plain Local Schools Alumni Association (director, currently serve on board)
Stark County Humane Society (director, currently serve on board)
Walsh University Advisory Board (member, currently serve on board)
Community Services of Stark County, Inc. (past president, past first vice president and
director, 2001 - 2006)
Stark County Citizen’s Council for Non-Violence (Justice Committee and Executive
Committee member, 1999-2004)
St. Michael the Archangel Roman Catholic Church Parish Council (member and past
council president, 1998 - 2003)
Family Services, Inc. (director, 2001-2002)
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J.R. Coleman Outreach Services, Inc. (director, 1997-2000)
Boy Scouts of America (2000)
Next Step, Inc. (director, 1994-2001)
Nova Behavioral Health, Inc. (director, 1999-2000)
Pyramid Career Services, Inc. (director and past board president) (1994-2000)
YWCA (director, 1998-2001)
Atlantic Blvd. Ltd. Partnership (real estate partnership - share sold in 2001)
Custom Design Technologies, Inc. (former director and secretary) (resigned Nov. 30,
1997, when I began my judicial service)
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
None
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
American Jurisprudence Award - Legal Writing and Research
Phi Alpha Delta
Phi Beta Kappa
Phi Kappa Phi
Phi Beta Delta (Honor Society for International Studies)
Omicron Delta Kappa (Leadership Honor Society)
Phi Alpha Theta (Honor Society in History)
Phi Sigma Alpha (Honor Society in Political Science)
Phi Eta Sigma and Alpha Lambda Delta (Freshman Honoraries)
Distinguished Undergraduate Political Science Major
Nordmann Award (College of Arts & Sciences)
President's Achievement Scholarship
University Achievement Scholarship
Book Scholarship (3 years)
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9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
American Bar Association
Ohio State Bar Association
Stark County Bar Association
Ohio Common Pleas Judges Association (elected trustee for 3-year term beginning 2004)
The Supreme Court of Ohio Board of Commissioners on Character and Fitness (1 of 12
attorneys or judges appointed to the board by the Supreme Court of Ohio) Appointed as
Chairperson of the Board by the Supreme Court for a one-year term for the years 2002,
2003, 2004, 2005 and 2006 (1996 - present)
The Supreme Court of Ohio Task Force on Rules of Professional Conduct (appointed by
Chief Justice Thomas J. Moyer) (2003 - 2006)
The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (1
of 28 individuals appointed to the board by the Supreme Court of Ohio) (1997)
Judicial Corrections Board (December 1997 - present) (Chairperson 2000 and 2001)
The Supreme Court of Ohio, Interpreter Services Subcommittee
Stark County Bar Association, Naturalization Committee (1998 - present)
Stark County Bar Association, Executive Committee (elected by members of the Stark
County Bar Association) (1995-1998)
Stark County Bar Association, Disputed Fee Committee (1995 - 1997)
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
I believe the American Bar Association and the Ohio Common Pleas Court Judges
Association may employ lobbyists who appear before public bodies.
Other organizations to which I belong:
Member, St. Michael the Archangel Roman Catholic Church
Member, Brookside Country Club
Member, Order of Sons of Italy - Ben V. Marconi Lodge
Member, Ladies Auxiliary VFW
Member, Stark County Humane Society
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11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
The State of Ohio - November 16, 1987 - Good standing
The United States District Court for the Northern District of Ohio - December 30, 1987 -
Good standing
The United States Court of Appeals for the Sixth Circuit - December 16, 1988 - Good
standing
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
Recapturing Professionalism , Stark County Bar Journal, Oct. 1998, at 4.
I have given speeches or presentations to various civic organizations and other groups
regarding the courts. I have discussed a variety of topics, including jury service, court
programs, court caseloads, the types of cases that come before a state trial court, an
overview of the state court system, judicial ethics, and the role of a judge in our system
of government. The format and topic of my speeches vary from audience to audience.
13. Health : What is the present state of your health? List the date of your last physical
examination.
I am in good health. My last physical was on June 7, 2006.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Stark County Common Pleas Court, General Division (Jurisdiction over civil and
criminal cases); Appointed in November, 1997, by (then) Governor George V. Voinovich
and took office on December 1 , 1997; Elected for an unexpired 4-year term in November
1998; Re-elected for a full 6-year term in November 2002
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15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written.
State of Ohio vs. Ronald J. Grezmak, Stark Cty. C.P, Case No. 2003CR0643 (Aug. 27,
2003) , aff'd. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2003CA00344 (July 12, 2004).
City of Canton, et al. vs. JackKoury, et al,. Stark Cty. C.P. Case No. 2003CV00485 (Jan.
14, 2004), aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2004CA0043 (June 20,
2005), jurisdiction declined , Ohio Supreme Court (Case No. 05-1344).
State of Ohio vs. Paid D. Lowe, Stark County C.P. Case No. 2004CR0547 (June 30,
2004) , aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2004CA00292 (Aug. 15, 2005),
jurisdiction accepted and appeal pending, Ohio Supreme Court (Case No. 2005-1843).
State of Ohio vs. Lamarr Parr, Stark Cty. C.P. Case No. 2000CR1 124 (Dec. 1, 2000).
State of Ohio vs. Craig Allen Limbach, Stark Cty. C.P. Case No. 2001CR0610 (Oct. 1 ,
2001), aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2001CA00396 (July 29, 2002).
M. Conley Company vs. Arthur M. Anderson, et al., Stark Cty. C.P. Case No.
2002CV04093 (Oct. 14, 2003), aff'd. Fifth Dist. Ct. Appls., Stark Cty. App. No.
2003CA00386 (Aug. 9, 2004), aff’d, 108 Ohio St.3d 252, 2006-Ohio-792 (2006).
William Haren vs. Superior Dairy, Inc., Stark Cty. C.P. Case No, 2002CV01038 (Sept.
11, 2003), aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2003CA00331 (Aug. 17,
2004), jurisdiction declined, Ohio Supreme Court (Case No. 04-1643).
Infinity Outdoor Advertising Inc. d.b.a Outdoor Systems Advertising vs. Jackson Twp.
Board of Zoning Appeals, Stark Cty. C.P. Case No. 2001CV00210 (Oct. 11, 2001).
Canton Police Patrolmen 's Ass 'n Inc. vs. City of Canton, Stark Cty. C.P. Case No.
2001CV01725 (Nov. 2, 2001), aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No.
2001CA00364 (May 13, 2002).
Timothy A. Swanson vs. Fraternal Order of Police, Ohio Labor Council, Stark Cty. C.P.
Case No. 2003CV01338 (Oct. 29, 2003).
(2) a short summary of and citations for all appellate opinions where your decisions
were reversed or where your judgment was affirmed with significant criticism of
your substantive or procedural rulings;
Since taking the bench, I have disposed of over 9,500 cases and conducted over 350 trials
(over 335 of which were jury trials). The following is a list of cases where my decisions
were reversed.
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State of Ohio v. David Daniels, Stark Cty. C,P. Case No. 1998-CR-0133, Fifth Dist. Ct.
Appls. Case No. 1998CA00273 (Sept. 20, 1999).
The defendant was convicted by a jury on one count of rape. On appeal, the defendant
asserted that I erred in prohibiting evidence of the victim’s crack cocaine use earlier on the
day of the incident. I excluded such testimony on the basis that it was not relevant to the
defense that the sexual encounter had been consensual. In a 2- 1 decision, the court of appeals
reversed, finding that the exclusion of such evidence deprived the defendant ofthe right to
present a complete defense and that same would have been relevant to the victim’s
credibility.
State of Ohio v. Chad A. Thomas, Stark Cty. C.P. Case No. 1998CR0141, Fifth Dist. Ct.
Appls. Case No. 1998CA00143 (Dec. 7, 1998).
The defendant was indicted on one count of possession of cocaine. The defendant filed a
motion to suppress the cocaine that was found in his pants pocket by a police officer through
a Terry pat-down search that was conducted during the execution of a search warrant at the
bar where the defendant worked. I denied the motion to suppress.
The court of appeals reversed, finding that, while the officer had reasonable suspicion to
conduct a Terry pat-down search, such search exceeded the scope of a Terry pat-down
because the officer admitted that the pat-down was conducted not only for weapons, but
because contraband might be present as well.
State of Ohio v. Lewis Thompson, Stark Cty. C.P. Case No. 2000CR0651 (July 30, 2000),
Fifth Dist. Ct. Appls. Case No. 2000CA00283 (Oct. 29, 2001).
The defendant was indicted on one count of robbery and was initially represented by
appointed counsel. The defendant wished to represent himself and, after confirming this
decision on the record, the defendant signed a written waiver of counsel, which was also
discussed on the record. The defendant represented himself at trial and was convicted.
The defendant, through assigned counsel, appealed his conviction and argued that he did not
knowingly, intelligently, and voluntary waive counsel. The appellate court agreed, finding
that, even though I engaged in an inquiry as to the voluntariness of the defendant’s waiver
of counsel, I also needed to inform the defendant of other matters, such as the nature of the
offense charged, the statutory offenses included within it, the range of allowable
punishments, and possible defenses to the charge.
Brotherhood Mut. Ins, Co. v. George & Elizabeth Michailides , Stark Cty. C.P. Case
No. 1998CV01271 (Mar. 3, 1999), Fifth Dist. Ct. Appls. Stark Cty. Case No.
1999CA00089 (Dec. 28, 1999).
As was the practice in their church, and with their minister’s permission, the defendants
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supplied candles and decorations that were placed in the church’s candelabra during their
wedding ceremony. The candles were not extinguished following the ceremony and the
church was damaged by smoke from a resulting fire. The church’s insurance company filed a
subrogation action against the defendants. The defendants filed a motion for summary
judgment, which I granted on the basis that the defendants did not owe a duty to extinguish
the candles. In this respect, the minister testified that he instructed the best man to light the
candles, but, contrary to his normal practice at a wedding, he did not instruct the best man to
extinguish the candles following the ceremony.
The appellate court reversed finding that, although there is no general duty to extinguish the
candles, the defendants owed a duty of reasonable care when they added decorations to the
candelabra. The appellate court further found that there were questions of fact as to
whether such duty was breached. The matter was reversed and remanded. A jury found in
favor of the defendants.
Patrick J. Calloway v. Cynthia Calloway, Stark Cty. C.P. Case No. 2001CV00539 (Aug. 9,
2001), Fifth Dist. Ct. Appls., Stark Cty. Case No. 2001CA00274 (Feb. 25, 2002).
The defendant filed a complaint for divorce, which the plaintiff did not contest. The
defendant obtained one-half of the marital portion of the plaintiffs 401 (K) plan. The plaintiff
brought suit against the defendant for breach of contract and fraud for failing to disclose the
prenuptial agreement in which the defendant disclaimed her right to the retirement benefits.
The defendant filed a motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B).
The motion was granted on the basis that res judicata barred the claims.
The appellate court revered and remanded finding that res judicata is not a basis upon which
a complaint may be dismissed pursuant to Civ.R. 12(B). Upon remand, the motion was re-
filed as a summary judgment motion and judgment was again entered in favor of the
defendant on the basis of res judicata.
KesterE. Cantwell, et ah, v. Joseph E. Frantz, Stark Cty. C.P. Case No. 2000CV01042, Fifth
Dist. Ct. Appls., Stark Cty. Case No. 2000CA00331 (Aug. 8, 2001).
This was a motor vehicle accident case in which the defendant filed a motion for summary
judgment on the basis that the complaint had been filed beyond the applicable statute of
limitations period. Even after taking into consideration time that the defendant had been out
of the state after the accident (which time would toll tire statute of limitations), the complaint
was found to have been filed untimely and the defendant’s motion was granted.
The appellate court reversed, finding that it was error not to consider “fractional days” that
the plaintiffs were out of the state, and count them as a full day. In computing the days in this
fashion, the appellate court determined that the plaintiffs had timely commenced the action.
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the instruction to be confusing and that it probably mislead the jurors. The matter was
reversed and remanded.
Robert D. Roberts v. Republic Storage Systems, Co, et al. Stark Cty. C.P. Case No.
2003CV03 1 67, Fifth Dist. Ct. Appls. Stark Cty. Case No. 2004CA00230 (April 25, 2005).
This was a workers’ compensation appeal wherein the plaintiff was seeking a determination
that his shoulder condition was compensable as a work related injury. The defendant filed a
motion for summary judgment arguing that the plaintiff filed his claim outside the applicable
statute of limitations for an occupational injury and summary judgment was granted on this
basis. The appellate court reversed with instructions to analyze the claim pursuant to the
statute of limitations for an occupational disease, rather than occupational injury.
Victoria Shumaker v. John L. Holstein, Stark Cty. C.P. Case No. 1999CV00020, Fifth
Dist. Ct. Appls., Stark Cty. Case No. 1999CA0031 (Oct. 30, 2000),
This case involved an automobile accident wherein, in addition to compensatory damages,
the plaintiff was seeking punitive damages based upon the defendant’s alleged intoxication
at the time of the accident. In the absence of expert testimony as to intoxication, I granted the
defendant’s motion in limine preventing any lay opinion that the defendant was intoxicated.
The appellate court reversed, finding that the lay evidence proffered as to the defendant’s
alleged intoxication was sufficient to send the issue of punitive damages to a jury.
Catrina Taylor v. Michael Covey, et al., Stark Cty. C.P. Case No. 2000CV01825 (June 6,
2002), Fifth Dist. Ct. Appls., Stark Cty. Case No. 2002CA00201 (Dec. 23, 2002).
I granted a motion for judgment on the pleadings filed by an insurance company whose
insured was liable for $800,000.00, where the insurance company denied the claim and
refused to defend under a reservation of rights. The plaintiff filed a motion for summary
judgment as to the binding effect of the j udgment on the insurance company, which had not
been made a party to the underlying case. The motion was denied. Upon appeal, the
appellate court reversed and entered final judgment against the insurance company.
The following cases involved cases decided under Scott-Pontzer v. Liberty Mutual Fire Ins.
Co. (1999), 85 Ohio St.3d 660, 1999-Ohio-292, wherein the Supreme Court of Ohio held
that, with respect to certain insurance policy provisions, a person who was injured in an
automobile accident could qualify for uninsured/underinsured motorist coverage under a
policy of insurance issued to that person’s employer, even though the person was not in the
course and scope of his/her employment at the time of the accident. As the case law in Scott-
Pontzer- type cases evolved, cases were reversed and/or remanded for judgment consistent
therewith. Four years later, in Westfield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216,
2003-Ohio-5849, recognizing that its holding in Scott-Pontzer “def[ied] practical
workability,” the Supreme Court significantly limited its holding in Scott-Pontzer to only
those accidents which occur during the scope and course of employment.
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Robert Bemabei, etal, v. The Cincinnati Ins. Co., Stark Cty. C.P. CaseNo.2000CV02399,
Fifth Dist. Ct. Appls., Stark Cty. Case No. 2002CA00073 (Sept. 20, 2004).
Tamara Bemabei, et al. v. Cincinnati Ins. Co., Stark Cty. C.P. Case No.
2000CV02399, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2003CA00103 (Dec. 22,
2004).
Tamara Bemabei, et al., v. St. Paul Fire & Marine Ins. Co., et al, Stark Cty. C.P.
Case No. 2000CV02399, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2003CA00346
(Sept. 13, 2004).
Russell J. Fisher v. West American Ins. Co., et al. Stark Cty. C.P. Case No.
2002CV01850, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2003CA00385 (Sept. 7,
2004).
Shirley K. Ickes, et al, v. CAN Insurance, etc., et al.. Stark Cty. C.P. Case No.
2001MI00023, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2001CA00241 (May 6,
2002 ).
Darene Jordan, etal., v. Travelers Property Casualty Ins. Co., Stark Cty. C.P. Case
No. 2001CV01062, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2002CA00248 (Mar.
17, 2003).
Susan S. Rosenberry, et al., v. John N. Morris, et al.. Stark Cty. C.P. Case No.
2000CV02838, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2002CA00399 (May 27,
2003) .
Jeannette Rufo v. Nationwide Agribusiness Ins. Co., Stark Cty. C.P. Case No.
2002CV00017, Fifth Dist. Ct. Appls., Stark Cty. Case No. 2003CA00291 (July 20,
2004) .
George Wertz v. Grange Mut. Ins. Co., Stark Cty. C.P. Case No. 2002CV01883,
Fifth Dist. Ct. Appls., Stark Cty. Case No. 2003CA001 86 (Jan. 12, 2004).
(3) citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions.
State of Ohio vs. Ronald J. Grezmak, Stark Cty. C.P. Case No. 2003CR0643 (Aug. 27,
2003), aff d, Fifth Dist. Ct. Appls., Stark Cty. App. No. 2003CA00344 (July 12, 2004).
City of Canton, Ohio, et al. vs. Jack Koury, et al, Stark Cty. C.P. Case No.
2003CV00485 (Jan. 14, 2004), a if d. Fifth Dist. Ct. of Appls, Stark Cty. App. No.
2004CA0043, jurisdiction declined, Ohio Supreme Court (Case No. 05-1344).
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State of Ohio vs. Paul D. Lowe, Stark Cty. C.P. Case No. 2004CR0547 (June 30, 2004),
aff’d, Fifth Dist. Ct. Appls., Stark Cty. App. No. 2004CA00292 (Aug. 15, 2005),
jurisdiction accepted and appeal pending, Ohio Supreme Court (Case No. 2005-1843).
State of Ohio vs. Lamarr Parr, Stark Cty. C.P. Case No. 2000CR1 124 (Dec. 1, 2000).
State of Ohio vs. Lamarr Parr, Stark Cty. C.P. Case No. 2000CR1 124 (Dec. 5, 2000).
State of Ohio vv. Craig Allen Limbach, Stark Cty. C.P. Case No. 2001CR0610 (Oct. 1,
2001), afFd, Fifth Dist. Ct. Appls., Stark Cty. App. No. 2001CA00396 (July 29, 2002).
State of Ohio vs. Ernest Robert Swogger, Stark Cty. C.P. Case No. 2002CR1558 (Feb.
27, 2003), aff'd, Fifth Dist. Ct. Appls., Stark Cty. App. No. 2003CA00144 (Feb. 27,
2003).
State of Ohio vs. Mark Swint, Stark Cty. C.P. Case No. 2002CR0945 (Feb. 28, 2003),
aff’d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2003CA00165 (Feb. 9, 2004).
State of Ohio vs. Stephen David Shoenfelt, Stark Cty. C.P. Case No. 2000CR0232 (June
29, 2000), appeal dismissed. Fifth Dist. Ct. Appls., Stark Cty. Case No. 2000CA00262
(Jan. 10,2001).
State of Ohio vs. Jeffrey Leon Gooden, et al„ Stark Cty. C.P. Case Nos. 2004CR2 123(A),
(B), and (C)(Apr. 25, 2005); No appeal filed.
State of Ohio vs. Sero D. Askew, Stark Cty. C.P. Case No. 2004CR0449 (June 28, 2004),
aff d. Fifth Dist. Ct. Appls., Stark Cty. App. No. 2004CA0027 5, jurisdiction declined,
Ohio Supreme Court (Case No. 05-1436).
Steven Shankel, et al„ vs. City of Canton, et al., Stark Cty. C.P. Case No, 2005CV00498
(Dec. 9, 2005), appeal pending, Fifth Dist. Ct. Appls., Stark Cty. App. No.
2006CA00004.
16- Public Office : State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
None
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
12
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
I have not served as a clerk to a judge.
2. whether you practiced alone, and if so, the addresses
and dates;
I have not practiced alone.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you
have been connected, and the nature of your connection
with each;
1997 - Present, Judge in the Stark County Court of
Common Pleas, General Division
Stark County Court of Common Pleas
Stark County Courthouse
115 Central Plaza, North
Canton, OH 44702
1987-1997
Day, Ketterer, Raley, Wright & Rybolt, Ltd. (Law firm)
200 Market Avenue, North
Canton, Ohio 44702
I was hired by the firm as an associate in the fall of 1987,
and was elected a principal of the firm in December 1993.
Upon being appointed by Governor George Voinovich to
fill a vacancy on the Stark County Common Pleas Court, I
resigned my membership in the law firm effective
December 1, 1997.
What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
As a judge of the Stark County Court of Common Pleas, General
Division, I preside over both civil and criminal cases.
While an attorney at Day, Ketterer, Raley, Wright & Rybolt, Ltd.,
my principal practice areas included appellate advocacy and civil
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litigation. I also was appointed by the Ohio Attorney General to
serve as Special Counsel to a local college.
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
The clients to whom I rendered legal services were diverse, and
included individuals, schools and institutions of higher learning,
municipalities, small businesses, and large multi-national
corporations.
c. 1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
Throughout my tenure in private practice, at the trial court level I
appeared in court occasionally, and at the appellate court level I
appeared in court frequently.
2. What percentage of these appearances was in:
(a) federal courts; 5%
(b) state courts of record; 95%
(c) other courts.
3. What percentage of your litigation was:
(a) civil; 100%
(b) criminal.
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
When I was in private practice, I worked on many cases at the trial
court level. I no longer have access to the case files, as they are
retained by my former law firm. The number of cases that I can
recall that I personally tried either before a judge, jury, arbitrator
or referee to verdict was seven. I was sole counsel at the trial or
hearing in six of the cases. Since I have been a judge, I have
presided to verdict over hundreds of trials.
5. What percentage of these trials was:
(a) jury; - 33%
(b) non-jury.- 67%
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18. Litigation ; Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before whom
the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and
of principal counsel for each of the other parties.
a. Edward Niesz, et al. vs. Northern Life Insurance Company, Stark County C.P. Case
No. 87-1119, Judge Harry Klide, Fifth Dist. Ct. Appls., Stark Cty. App. No. CA-8818
(March 30, 1993)(Panel: Judges Irene Smart, Norman Putman & William Hoffman),
jurisdiction declined, Ohio Supreme Court, Niesz v. Northern Life Ins. Co., 76 Ohio
St.3d 1438(1993).
Party Represented; Intervening Plaintiff, Lawrence Northcutt, Individually and as
Executor of the Estate of Carolyn Northcutt, Deceased
Date of representation:
Est. 10/87-08/93
Co-counsel:
Louis A. Boettler, Retired
Day Ketterer Ltd.
Home: 5143 East Blvd., NW
Canton, OH 44718
(330)494-9350
Alicia M. Wyler
John A. Murphy, Jr.
Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330)455-0173
Lead opposing counsel:
(Northern Life Ins. Co.)
William D. Dowling
195 S. Main St.
Suite 300
Akron, OH
(330) 762-7377
This lengthy, complex, and novel case (which was believed to be a case of first impression in
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Ohio) involved numerous claims surrounding the negligent issuance of a life insurance
policy which resulted in the wrongful death of the insured. Co-counsel and I represented the
son of the insured, who was appointed executor of his mother’s estate.
The decedent, who lived alone, died under suspicious circumstances after returning home
from having drinks at a local restaurant with her insurance agent, Edward Niesz. He was
the last known person to be with her. Initially, the coroner ruled that her death was
accidental, due to her falling down stairs in her home onto a pair of scissors that pierced
her heart. After a review of the autopsy and other evidence, an independent pathologist,
retained on behalf of the estate, determined that the decedent had been beaten and
stabbed, and that her death was not accidental.
The action was originally brought by Niesz, the insurance agent, to recover the proceeds of
a life insurance policy issued by Northern Life Insurance Company. He was listed on the
policy as the beneficiary and his relationship was described as “executor.” Our client, who
was the son of the decedent and the duly appointed executor of her estate, intervened as a
plaintiff against Northern Life asserting, among other things, claims for reformation of the
insurance policy to list himself as the executor of his mother’s estate and beneficiary of the
policy, breach of contract, bad faith, wrongful death and survivorship, fraud, and punitive
damages. The estate also cross-claimed against Niesz and asserted that he was not entitled
to the proceeds because he caused the death of the decedent in order to collect the
insurance proceeds.
The jury found that Northern Life was negligent in issuing the policy and awarded
$800,000 in damages to our client on the survivorship claim. The trial court set off
$ 1 50,000 from the verdict as a result of prior settlement for wrongful death that our client
had entered into with another life insurance company for similar, yet separate claims.
Northern Life Insurance Company appealed and we cross-appealed on behalf our client.
The court of appeals overruled all of Northern Life’s assignments of error and sustained a
number of our assignments of error. In doing so, the court reinstated the full jury award,
in the amount of $800,000. Additionally, the court found merit to our assignment of error
that the trial court should have reformed the insurance contract and, as a result, entered
judgment in favor of our client for the face amount of the insurance policy ($31 1,300),
making the total judgment against Northern Life $1,1 1 1,300.
I was responsible for researching potential causes of action, drafting the complaint and
discovery requests, locating and interviewing lay and expert witnesses, and all legal
research relative to the case. I was also involved extensively in the critical legal analysis
of the case and in all important strategy and tactical decisions. Additionally, I researched
and wrote all briefs and memoranda at the trial court level, and all briefs at the appellate
court levels.
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b. Gregory Greene, et al. v. United Foundries, Inc., Fifth Dist. Ct. Appls., Stark Cty,
App. No. 94CA0106 (Mar. 21, 1995)( Panel: Judges Sheila G. Farmer, William B.
Hoffinan and W. Don Reader).
United Foundries, Inc.
Est. 11/91-3/95
William S. Cline
Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330)455-0173
Jerry P. Hontas, Retired
140 SE 5 1h Avenue
Unit 549
Boca Raton, FL 33432
(561)417-4539
This case involved three separate intentional tort cases that arose from the same incident. The
cases were consolidated for purposes of discovery and trial.
The plaintiffs were employees of United Foundries, Inc. and were all seriously injured as a
result of an accident involving a vertical centrifugal casting machine. At the time of the
accident, the employees were assisting in the production of a casting to be produced on the
casting machine. This production method required that a mold be attached to a plate on the
casting machine which would rotate when driven by an electric motor. The casting machine
was located in a pit which had been specifically constructed for the installation of the casting
machine.
Party represented:
Date of representation:
Co-counsel:
(United Foundries)
Lead opposing counsel:
During the production process, a mechanical failure occurred. The lid of the mold broke free
allowing molten metal and hot expanding gases to escape from the mold. This explosive
eruption, in turn, caused the hot gas and molten metal to be spewed from underneath the
protective plates on top of the mold causing bum injuries to the plaintiffs.
The plaintiffs alleged that United Foundries had knowledge that the process being used was
dangerous as a result of being notified of an incident at another company’s facility involving
the same type of machine. They also pointed to concerns that United Foundries had about
vibrations in the machine the employees were using.
After a four day trial, the jury unanimously found in favor of United Foundries. At the trial,
evidence was introduced that United Foundries had performed substantial work on the
vertical centrifugal casting machine to improve upon the machine and try and make it safe,
and that after modifications were made, there were no complaints about the safety of the
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machine.
The plaintiffs appealed, asserting error on the part of the trial judge in instructing the jury
relative to the elements of an intentional tort. The court of appeals affirmed the verdict in the
trial court.
I was responsible for handling the appeal. I reviewed the transcript of proceedings,
researched the law, and prepared the brief, which included a cross-appeal. I also argued
the case before the court of appeals.
c. Peter Briney, et al. v. The Timken Company, et ai, Fifth Dist. Ct. Appls., Stark Cty.
App. No. CA-8043 (Aug. 27, 1990)(Panel: Judges Norman Putman, John Milligan,
William Hoffman), jurisdiction declined , Ohio Supreme Court (Case No. 90-2062)
(Jan. 16, 1991).
Party represented:
Date of representation:
Co-counsel:
The Timken Company
Est. 9/86- 1/91
William S. Cline
Day Ketterer Ltd.
300 Millennium Centre
Canton, OH 44701-4213
(330) 455-0173
Lead opposing counsel: Thomas Mester
1370 Ontario Street, First Floor
Cleveland, OH 44113
(216)621-2300
The plaintiffs, Peter and Carolyn Briney, filed a complaint against numerous defendants
seeking damages as a result of injuries sustained by Peter Briney at his place of employment.
At the time of the accident, Briney was assisting a co-worker in the installation of a pump that
had previously been removed from service for repairs. Due to the fact that the pump was being
reinstalled, there was no guard or cover over the exposed coupling between the pump and the
motor. During the reinstallation, in order to better position himself to assist his co-worker,
Briney placed his foot on the platform on which the motor assembly was located. He then
leaned forward to shine a flashlight to read an optical pyrometer, at which time his pant leg
was caught by an exposed grease fitting on a rotating coupling. His leg was injured when it
was pulled against the spinning coupling.
As to our client, the employer, the plaintiffs asserted an intentional tort claim. (As to the co-
defendants, the plaintiffs asserted a products liability claim.)
Co-counsel and I filed a motion for summary judgment on behalf of the employer, and the trial
court granted the motion. The decision was affirmed on appeal.
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I was responsible for reviewing the evidence, researching and preparing the motion for
summary judgment and reply brief at the trial court level, and all briefs at the appellate court
levels.
d. Joshua Driggs, A Minor, et al. v. National Electric Coil, et al . , Summit Cty. C.P.
Case No. CV 90 01 0186 (Judge Glen B. Morgan), Ninth Dist. Ct. Appls., Summit
Cty. App. No. 14896 (Mar. 27, 1991)(Panel: Judges Daniel B. Quillin, William R.
Baird, John W. Reece).
Party represented: National Electric Coil
Date of representation: Est. 1 /90 - 3/9 1
Co-counsel: James R. Blake
Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330)455-0173
Lead counsel for co-defendant: Deborah Cook
(Ohio Edison Company) (Currently a Judge on the U.S. Sixth Circuit)
Co-counsel for co-defendant: Robert Linton
1500 Cascade Plaza
Akron, OH 44308
(330) 434-3000
Ixad opposing counsel: William F. Mikesell
1 59 S. Main Street
Suite 400
Akron, OH 44308
(216)434-1211
This was a premises liability case involving a lOVi year old minor who had climbed into an
electrical substation on industrial property and sustained serious injuries. The defendants filed
separate motions for summary judgment, which were granted by the trial court. The trial court’s
decision was later affirmed by the court of appeals.
I attended client meetings, site tours, depositions, and assisted with discovery. Additionally, I
was responsible for reviewing the evidence, researching and preparing the motion for summary
judgment and reply brief at the trial court level, and all briefs at the appellate court levels.
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133
e. John Leach v. Leiner Health Products, Inc., Summit Cty, C.P. Case No. 95 10 3676
(Judge Patricia Cosgrove).
Party represented: Leiner Health Products, Inc.
Date of representation: Est. 1 1/95 - 4/97
Co-counsel: Alicia M. Wyler
Louis A. Boettler, Retired
Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330) 455-0173
Lead opposing counsel: Patrick A. Malone
100 Connecticut Avenue, NW
Suite 1100
Washington, DC 20036
(202) 6610918
This was a complex case involving a wrongful death claim as a result of the decedent’s use
of acetaminophen in combination with her regular consumption of alcohol. The plaintiff’s
claim against the defendant was based upon a number of theories, including products
liability (failure to wam and failure to conform to representations), label misbranding
within the meaning of 21 U.S.C. § 352 (Federal Food, Drug and Cosmetic Act) and Title
13 of the Ohio Revised Code, misrepresentation, breach of warranties under the Uniform
Commercial Code, common law tort claims (including breach of express and implied
warranties and negligence), and breach of the Ohio Consumers Sales Practices Act. The
plaintiff also requested punitive damages.
There were numerous motions filed on behalf of the defendant prior to trial, including a
motion for summary judgment and a Daubert motion regarding the plaintiffs experts. The
case proceeded to trial before a jury. During deliberations, the case was settled.
I was responsible for locating and interviewing expert witnesses, and all legal research
relative to the case. I was also involved extensively in the critical legal analysis of the
case and in all important strategy and tactical decisions. Additionally, I researched and
prepared all briefs and memoranda at the trial court level, and argued motions before the
trial court prior to trial.
f. Lavista Brown-Austin v. Judith A. Johanrting, et al. , Stark Cty. C.P. Case No. 88-970
(Judge James R. Ungar).
Parties represented: Judith A. Johanning and Visiting Nurse Society of Central
Stark County
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Date of representation: Est, 7/88 - 9/90
Co-counsei: John A. Murphy
(Lead trial counsel) Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330) 455-0173
Lead opposing counsel: William J. Sexton
800 Standard Building
Cleveland, OH 44113
(216) 621-0500
This was a wrongful death case involving the death of a young man in a car-motorcycle
accident. Co-counsel and I represented the defendants, a visiting nurse who was working in the
course and scope of her employment at the time of the accident, and her employer. The jury
returned a verdict in favor of our clients.
I was primary counsel responsible for handling the case. I conducted discovery, investigated
issues related to the case, located and interviewed lay and expert witnesses (including an
accident reconstructionist), and performed all legal research relative to the case. I was also
involved extensively in the critical legal analysis of the case and in all important strategy and
tactical decisions. I researched and prepared all briefs and memoranda at the trial court level,
and actively participated as trial counsel.
g. Victoria Kilgore, et al. v. David Shrock, et al. , Stark Cty. C.P. Case No.
1994CV01404 (Judge Harry Klide), Fifth Dist. Ct. Appls, Stark Cty. App. No.
1995CA00299 (June 24, 1996)(Panel: Judges John Wise, William Hoffrrtan, Scott
Gwin).
Party represented: Richard T. Kiko Agency, Inc. (Third-Party Defendant)
Date of representation: Est. 1 1/94 - 6/96
Co-counsel: John R. Werren
Day Ketterer Ltd.
300 Millennium Centre
Canton, OH 44701-4213
(330) 455-0173
Defendant/Third-Party
Plaintiff counsel: James D. Snively
1 1 Lincoln Way East
Massillon, OH 44646
(330) 837-4251
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Lead opposing counsel: Richard L. Henning
Henning & Yost Co., L.P.A.
5022 Yukon NW, Suite D
Canton. OH 44708
(330) 479-9825
This case involved a dispute as to who was entitled to free gas following an auction of an
eighty-acre farm that was divided into three parcels. Prior to the auction, it was
announced that there was an oil and gas lease on the property and a well. In addition to
paying royalties for oil and gas produced from the well, the lease provided that free gas
would be provided to one dwelling on the eighty acre tract. It was predetermined that the
right to the free gas would go to the purchasers of parcel two (which was the parcel that
the separator for the well was located). Even though the plaintiffs purchased parcel three,
they believed they were entitled to the rights to the free gas because the well head for the
oil and gas well was located on parcel three.
The trial court granted the summary judgment in favor of the auctioneer and the court of
appeals affirmed.
I was primary counsel responsible for handling the case. I conducted discovery, investigated
issues related to the case, located and interviewed lay witnesses, and performed all legal
research relative to the case. I was also involved extensively in the critical legal analysis of
the case and in all important strategy and tactical decisions. I researched and prepared all
briefs and memoranda at the trial court level, and also argued the case before the court of
appeals.
h. Siebert, el al. vs. Chessler, et al, Stark Cty. C.P. Case No. 1993CV01317 (Judge Harry
Klide)(Arbitrator: Judge James R. Ungar, Retired).
Parties represented; Donald E. Siebert and Constance J. Siebert
Date of representation: Est. 08/93 - 1 1/94
Lead opposing counsel: Stephen P. Griffin
Buckingham, Doolittle & Burroughs, Ltd.
45 18 Fulton Dr., NW
Canton, OH
(330)491-5262
This is was an action for civil fraud in which my clients, the buyers of a home, alleged that the
sellers of the home failed to disclose material information concerning the swimming pool,
specifically, that a comer of the pool was sinking. The case was arbitrated before a retired judge,
who found in favor of my clients. The defendants filed a notice of appeal from the arbitrators’
decision, after which the case was settled.
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I was responsible for all aspects of the case, including discovery, preparing a response to the
defendants’ motion for summary judgment, and preparation and presentation of the case at
arbitration.
i. Ohio Power Company vs. GKL Construction Co., Canton Muni. Ct. Case No. 1992-CVF-
1519 (Judge Mary Falvey).
Party represented: Ohio Power Company
Date of representation: Est. 7/92 - 12/92
Co-counsel: James R. Blake
Day Ketterer Ltd.
300 Millennium Centre
P.O. Box 24213
Canton, OH 44701-4213
(330) 455-0173
Lead opposing counsel: Stephen P. Griffin
Buckingham, Doolittle & Burroughs, Ltd.
4518 Fulton Dr., NW
Canton, OH
(330)491-5262
This case involved a claim for negligence by Ohio Power Company against GKL
Construction Co. Ohio Power Company alleged that GKL was damaging its poles while
doing excavation work in connection with a road relocation project. The case was tried to a
jury who returned a verdict in favor of Ohio Power Company. The defendant did not appeal.
I was primary counsel responsible for handling the case. I conducted discovery, investigated
issues related to the case, located and interviewed lay witnesses, and performed all legal
research relative to the case. I also was sole counsel at trial for Ohio Power Company.
j. John J. Oser v. First National Bank of Ohio, et al., Summit Cty. C.P. Case No. 93 08 2702
(Judge Patricia Cosgrove).
Party represented: First National Bank of Ohio
Date of representation: Est. 1 1/94
Co-counsel: Alicia M. Wyler
Day Ketterer Ltd.
300 Millennium Centre
Canton, OH 44701-4213
(330)455-0173
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John Solomon
Vorys, Sater, Seymour and Pease, LLP
106 South Main Street, Suite 801
Akron, OH 44308
(330)208-1013
Lead opposing counsel: A. Edward Bonetti, Jr.
441 Wolf Ledges, # 302
Akron, OH 44311
(216) 376-9691
This was a lender liability case involving the plaintiffs procurement of a $200,000 loan from
the defendant bank. The loan officer agreed that the plaintiff would receive the loan if he paid
the loan officer a $12,000 kickback. The plaintiff obtained the loan and reported the kickback
scheme to bank officials who alerted the FBI. The FBI arranged a “sting” operation whereby
the plaintiff wore a wire and offered the loan officer the money. The loan officer accepted the
money and was prosecuted for his participation in the scheme.
As to the bank, the plaintiff asserted claims for fraud, deceit and misrepresentation, intentional
infliction of emotional distress, negligent hiring, interference with business relations, engaging
in a pattern of corrupt activity, and punitive damages. A motion for summary judgment was
filed on behalf of the bank as to all of the plaintiffs claims. The trial court granted the motion.
I was responsible for reviewing the evidence, researching and preparing a motion for summary
judgment and reply brief at the trial court level, and all briefs at the appellate court levels.
k. Lois A. Rigsby, Executrix, v. Ohio Power Company , Ninth Dist. Ct. Appls., Wayne
Cty. App. No. 2423 (Aug. 2, 1989)(Panel: Judges John W. Reece, Edward J.
Mahoney, William R. Baird).
Party represented: Ohio Power Company
Date of representation: Est. 5/88 - 8/89
Co-counsel: James R. Blake
Day Ketterer Ltd.
300 Millennium Centre
P.O.Box 24213
Canton, OH 44701-4213
(330) 455-0173
Albert M. Orgain IV
801 E. Main Street
Suite 1800
Richmond, VA 23219-2906
(804) 783-7243
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Lead opposing counsel: Charles A. Kennedy
558 North Market Street
Wooster, OH 44691
(216) 262-7555
This case involved claims of negligence and nuisance against Ohio Power Company relative to
the location of a wooden utility pole. A commercial pilot was operating a twin-engine turbo-prop
passenger airplane which was bound for Wayne County, Ohio airport. The plane carried one
passenger, the plaintiffs decedent. On the final approach to the runway, the airplane struck a
wooden utility pole which carried transmission lines owned and maintained by Ohio Power
Company. The aircraft tumbled into a cornfield short of the runway, and both the pilot and his
passenger died as a result of the accident.
After a seven-day jury trial, the jury rendered a verdict in favor of Ohio Power Company. The
plaintiff appealed asserting a number of assignments of error. The Ninth District Court of
Appeals overruled all assignments of error and affirmed the jury verdict.
I was responsible for reviewing the record, and assisting in the research and preparation of the
brief at the appellate court level.
19, Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
I feel strongly that lawyers and judges should be involved in activities that serve to
promote confidence in and improve our legal system. Additionally, I believe it is
important to maintain high standards of professionalism and conduct in the profession in
order to protect the public and inspire respect for our legal system. To this end, I have
volunteered my time in service on boards, committees, and other organizations on local,
state, and national levels, many of which in some manner are involved with the
regulation of the profession.
While I was in the private practice, I was elected by the members of the Stark County Bar
Association to serve on the executive committee of the bar association. I also assisted or
served on the boards of a number of non-profit agencies and organizations and, prior to
becoming a judge, provided pro bono legal services to some of these agencies and
organizations.
Prior to becoming a judge, I served on the Supreme Court of Ohio Board of
Commissioners on Grievances and Discipline. This Board is a twenty-eight member
commission appointed by the Supreme Court of Ohio, and is responsible for issuing final
recommendations to the Supreme Court on formal disciplinary charges against Ohio's
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lawyers and judges, monitoring and assisting the certified grievance committees in the
regulation of the legal profession, and issuing advisory ethics opinions.
For over the past ten years, I have served on the Supreme Court of Ohio Board of
Commissioners on Character and Fitness, and for the last five years, I have been
appointed by the Supreme Court of Ohio to serve as chair of the Board. The Board is a
twelve-member commission appointed by the Supreme Court of Ohio to review cases
involving applicants who are seeking to become licensed to practice law in the State of
Ohio and approve applicants to sit for the bar examination in Ohio. The Board serves as a
gatekeeper, from the perspective of character and fitness matters, as to all individuals
who seek to become licensed to practice law in Ohio. In addition to chairing the Board
and serving on hearing panels in cases involving applicants who have been disapproved,
approved with qualifications, or who are being reviewed at the request of the Board, I
also serve on a number of active subcommittees of the Board, including the rules and
forms subcommittee and a review subcommittee (which is responsible for reviewing all
candidate applications submitted to determine if a character and fitness hearing is
necessary). I have also served on the Character and Fitness Committee of the National
Conference of Bar Examiners.
Additionally, in March, 2003, 1 was appointed by the Chief Justice of the Ohio Supreme
Court to serve on the Supreme Court of Ohio Task Force on Rules of Professional
Conduct. The Task Force devoted more than three years to a comprehensive review of
Ohio’s current legal ethics rules and standards, the Model Rules of Professional Conduct
promulgated by the American Bar Association, and the legal ethics rules promulgated by
other states. The Task Force recently completed its work on the rules and submitted a
proposal to the S upreme Court of Ohio, which adopted new rules on July 18, 2006, based
upon the recommendations of Task Force.
Finally, I devote a significant amount of time presenting at seminars in the areas of
professionalism, legal ethics, and character and fitness standards. I have spoken on these
topics to judges, lawyers, and law students. I have presented programs for a number of
different sponsors, including the Ohio Judicial College, the Ohio Judicial Conference, the
Ohio State Bar Association, the National Conference of Bar Examiners, and the Stark
County Bar Association. Currently I serve as a trustee for the Ohio Common Pleas
Judges Association. The association sponsors seminars for common pleas court judges in
Ohio, and I have presented seminars on judicial ethics to this association as well.
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II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1 . List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
I have participated in the Public Employee Retirement System for the State of Ohio and I
anticipate I will be paid retirement income based upon my length of service.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
It is my practice to provide my administrative assistant with information regarding any
potential conflicts of interests, particularly as it pertains to my retirement investment
accounts, so that my assistant can help bring potential conflicts of interests to my
attention. Additionally, I am very sensitive to potential conflicts of interests, and it is my
practice to disclose any potential conflict of interest to counsel for the parties and
voluntarily recuse myself when appropriate. I will continue to follow these practices if
appointed to the United States District Court, and also abide by the Code of Conduct for
United States judges and all applicable statutes, policies, and procedures.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
I have no plans to pursue outside employment if I am confirmed to serve as a United
States District Judge for the Northern District of Ohio.
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
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141
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached net worth statement.
6. Have you ever held a position or played a role in a political campaign? Yes. If so,
please identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I served as chair of the committee to elect John F. Boggins to the Stark County Common
Pleas Court (1994).
I served as chair of the committee to elect Barbara Frustaci Stark County Commissioner
(1994).
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142
AO-10
Rev. 1/2004
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1978
(5 U.S.C. app. §§ 101-ill)
1. Person Reporting (Last name. First name. Middle initial)
Lioi, Sara E
2. Court or Organization
U.S. District Court, Ohio
3. Date of Report
7/18/2006
4. Title (Article 111 Judges indicate active or senior status;
magistrate judges indicate full- or part-time)
U.S. District Judge - Nominee
5. ReportType (check appropriate type)
{•) Nomination, Date 7/13/2006
Q Initial Q Annual (3 Final
6. Reporting Period
1/1/2005
to
6/30/2006
7. Chambers or Office Address
Stark County Courthouse
115 Central Plaza, North
Canton, Ohio 44702
8. On the basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
IMPORTANT NOTES: The instructions accompanying this form must be followed Complete all parts, checking the NONE box for each part 5V
where you have no reportable information. Sign on last page. ,
I. POSITIONS. {Reporting individual only; see pp. 9-13 of filing instructions)
O NONE - (No reportable positions.)
POSITION
1. Judge
2 . Director (President of Board from 4/04-4/05)
I. Director
1. Director
NAME OF ORGANIZATION/ENTITY
Stark County Common Pleas Court
Community Services of Stark County, Inc.
Plain Local School Foundation
Plain Local Alumni Association
Director
Stark County Humane Society
i. Member
Walsh University Advisory Board
D. AGREEMENTS. (Reporting individual only; see pp. 14-16 of filing instructions)
0 NONE - (No reportable agreements.)
1.
DATE
143
HL NON-INVESTMENT INCOME. (Repotting individual and spouse; see pp. 17-24 of filing instructions)
A. Filer's Non-Investment Income
□ NONE - (No reportable non- investment income.)
1.
2004
State of Ohio/Judiciary - Salary
87,955.70
2.
2004
County of Stark (State of Ohio) - Salary
13,980.01
3.
2005
State of Ohio/Judiciary - Salary
90,419.08
4.
2005
County of Stark (State of Ohio)- Salaty
13,999.96
5.
2006
State of Ohio/Judiciary - Salary
51,097.68
6.
2006
County of Stark (State of Ohio) - Salary
6,999.98
B. Spouse's Non-Investment Income(If you were married during any portion of the reporting year, please complete this section. Dollar amount not
required except for honoraria.)
® NONE - (No reportable non-investment income.)
DATE
IV. REIMBURSEMENTS -- transportation, lodging, food, entertainment
(Includes those to spouse and dependent children. See pp. 25-27 of instructions.)
D NONE - (No such reportable reimbursements.)
SOURCE
EXEMPT
144
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Lkn, SaraE
7/18/2006
V. GUTS. (Includes those to spouse and dependent children. Seepp. 28-3 1 of instructions.)
□ NONE - (No such reportable gifts.)
SOURCE DESCRIPTION VALUE
I. EXEMPT
VI. IJABILniES. (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
O NONE - (No reportable liabilities.)
CREDITOR DESCRIPTION
1. Bank of America
Credit Card
VALUE CODE
145
FINANCIAL DISCLOSURE REPORT
Page I of 1
Name of Person Repotting
Date of Report
Lioi, SaraE
7/18/2006
VII. INVESTMENTS and TRUSTS - income, value, trjnscalions (includes (hose of (he spouse and dependent children. See pp. 34-57 of filing instructions.)
A.
B
1
C.
D. I
Description of Assets
Income during
reporting period
Gross value at end of 1
repotting period j
Transactions Airing reporting period
(11
a>
(1)
(2)
If nol exempt from disclosure j
<2)
(3)
(4)
(5)
Place "(X)" after each asset exempt
from prior disclosure
Amount
Code 1
(A-H)
Type (eg.
int.)
Value
Code 2
(J-P)
Value
Method
Code 3
(Q-W)
Type (e.g.
buy, sell,
redemption)
Date:
Month -
Day
Value
Code 2
(J-P)
Code l
(A-H)
identity of
buyer/seller
(if private
transaction)
! 1 NONE (No reportable income, assets, or transactions) |
1.
KeyBank Account
m
gggj
J
T
Exempt
2.
Public Employee Retirement System
■
H
■
3.
IRA
D
Dividend
1
4.
-JP Morgan Liquid Assets Moneymarket
5.
-Columbia Large CAP Value Class C
6.
-Columbia Mid CAP Value Class C
7.
-Exxon Mobile Corp Common Stock
tm
fl
■
-Fifth Third Bancorp Common Stock
10.
-JP Morgan lntermed Bond Class C
11.
-MFS Mass Investor Growth Stock C
12.
-Medco Health Solutions Inc. Common Stock
13.
-Merck & Co. Inc. Common Stock
14.
-Oppenheimer Infl Growth Class C
15.
-Oracle Corporation Common Stock
16.
-Progressive Energy Inc. Contigent Value Oblig.
1. Incomc/Gain Codes:
(See Columns B1 andD4)
2. Value Codes:
(See Columns Cl and D3)
3. Value Method Codes
(See Column C2)
A - $(,000 or less
F * $50,001 -$100,000
J =$15,000 or less
N ~ $250,000-$ 500,000
P3 - $25,000,001 -SS0, 000,000
Q = Appraisal
U " Book Value
B » $t,001-S2,500
G =$100,00l-$l,000,000
K =J15,001-$50,000
O ” S500.00 1 -$ 1 ,000.000
R = Cost (Real Estate Only)
V -Other
C = $2,501-$5,000
HI =$1,000,001-15,000,000
L = $50,00 1 -$100 ,000
PI - $1,000, 001-S5.000, 000
P4 = $More than $50,000,000
S = Assessment
W = Estimated
D = $5,00l-$15,000
H2 = More than $5,000,000
M =$100,001 -$250,000
P2 - $5 ,000,00 1-J25, 000, 000
T = Cash/Mariret
= $15,001 -$50,000
146
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Lioi, Sara E
7/18/2006
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate part of Report)
FINANCIAL DISCLOSURE KLt'UK i
name oi rereon Reporting
uaie oi Rtpon
Lioi, SaraE
7/18/2006
IX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
Signature,
Date_
?//g/o 6.
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY
BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
147
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
148
III, GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
I have served on the board of directors for numerous community not-for-profit
organizations. When I was in private practice, as a part of my service to some of these
organizations, I provided pro bono legal services. The Code of Judicial Conduct prohibits
me from rendering any such sendee presently.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates — through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
I belong to no such organizations.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
I met with a selection committee on December 20, 2005. It is my understanding that the
selection committee made recommendations to the two United States Senators from
Ohio. I interviewed with one of the Senators. My name was recommended to the
President in April. On April 10, 2005, 1 interviewed with staff from the White House
Counsel’s Office and from the Department of Justice. After completing nomination
paperwork and undergoing a thorough background investigation, I was notified that my
name would be forwarded to the Senate. The President sent my nomination to the Senate
on July 13, 2006.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
29
149
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this “judicial activism” have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
The Constitution of the United States sets forth the authority, duties, and
responsibilities of the three branches of government. The role of the judiciary is
set forth in Article III, which empowers judges to decide specific types of cases
and controversies. Article I and Article II of the Constitution set forth the role of
the legislative and executive branches of government. Among other things, these
two branches are responsible, respectively, for enacting and enforcing laws. It is
also the prerogative of these two branches to make policy decisions within the
confines of the parameters of their duties as set forth in the Constitution.
All three branches of government have distinct and vital roles within our
constitutional framework, and each should respect the roles of the others. I
believe the term “judicial activism” is employed when there is a belief that the
judiciary has improperly exceeded its authority and intruded into an area reserved
for the legislative or executive branch.
The role of the judiciary is, of course, crucial, and judges ought to be able
to fulfill their proper role without interference from the other branches of
government; however, judges must be mindful that their role is limited. Judges
30
150
must be committed to performing their duties within the proper confines of
Article III authority. These duties include deciding the cases and controversies
that are properly before them and interpreting the law; these duties do not include
making law or policy decisions. To this end, judges must be respectful of and
show proper deference to the other two branches of government, both of whom
also have constitutional authority vested in them. To the extent that a judge
improperly intrudes beyond the constitutional authority of the judiciary and into
an area within the authority of either of the other branches, then criticism is
warranted.
31
151
AFFIDAVIT
I, Sara E. Lioi, do swear that the information provided in this statement is, to the best of my
knowledge, true and accurate.
152
Senator DeWine. Good. Well, we welcome everyone. We are glad
everyone is here. Thank you very much.
Judge Jordan, you have written “it takes restraint to recognize
that even when you have the tools to right wrongs, not everything
that you perceive as wrong is yours to right.”
Would you say that this is an accurate expression of your judicial
philosophy, and how do you think this philosophy will manifest
itself if, in fact, you are confirmed as the appellate judge?
Judge Jordan. That is a quick summary of an attribute I very
much admire in judges that I have known. I know it is an attribute
that I want, and I think I have, exhibited in my time on the bench.
I feel a great responsibility whenever I walk into the courtroom
to see to it that the elected offices in our government are given the
deference and respect that they ought to have.
I want to echo what the other judges have said here about grati-
tude to the President for the nomination. This is the second oppor-
tunity I have had to be nominated by President Bush, and my grat-
itude knows no bounds.
I just feel it is really important that when we are wearing the
robe and presiding, that we keep firmly in mind that we are to
apply the law, we are not there to make public policy.
Senator DeWine. Judge, how do you feel your background as a
trial judge will help you in your new position?
Judge Jordan. Well, I certainly will have a real appreciation for
what it takes to create a trial record and to be conscious of the
work and the many opportunities that come up for a district judge
to make a close call on a point of evidence or on a motion that is
before them.
I would be very tuned in to the rules of deference that are in
place for appellate review because they make our system function
in a sensible way.
Senator DeWine. You have a great deal of background in intel-
lectual property, certainly a specialized area of practice. How has
that helped you in the district court, and what impact will that
have, do you think, in your appellate work?
Judge Jordan. Well, the District of Delaware has a very full
docket of patent cases. Those cases will, on appellate review, end
up before the Federal Circuit. But the kinds of issues that fre-
quently accompany them, antitrust issues, for example, and the
kinds of procedural issues that come up in the patent cases, com-
plicated cases as they are, will, of course, come to the Third Cir-
cuit. The trademark cases and copyright cases I have handled will
also end up in the Third Circuit.
I believe, having handled those at the district court level, I will
again have an appreciation for the challenge it is when you have
multiple parties and a lot of money on the table, as you do in these
intellectual property cases regularly, what it has taken to get the
case to appellate review, and hopefully that will stand me in good
stead as I am considering the complicated issues that will arise on
appeal.
Senator DeWine. Senator Biden?
Senator Biden. Judge, tell me your view of stare decisis. I did,
with the help of some constitutional scholars, a study about three
years ago. Since the Supreme Court is not taking that many cases
153
on cert these days, not hearing as many cases as they used to by
a long shot, you guys are the last stop on the train for a significant
number of constitutional issues, more than any time that I can
think of in the last 75 years.
Tell me how you, as a circuit court judge, would have a view dif-
ferent, if it is different, from your view of stare decisis as a district
court judge.
Judge Jordan. Well, Senator, it would not be different in any
material respect. As an appellate court judge, I know I would be
working within the framework of decisions that the Third Circuit
had already rendered, and those are typically only changed by an
en banc ruling of the court, and certainly would be bound by the
decisions of the Supreme Court.
So as I have tried to do as a district court judge, I would be pay-
ing very close attention to the precedents set that would regulate
and bind decision making that I would be called upon to make as
a circuit court judge.
Senator Biden. Would you look to the Third Circuit itself and be
inclined to give it deference on matters that came before you as op-
posed to assuming that the question in question had not been liti-
gated before the Supreme Court?
Judge Jordan. If it had been a matter decided by the Third Cir-
cuit — and I confess, I have not taken a look at the internal oper-
ating procedures of the court in some time — I believe that there are
procedures that the court has so that panels will be following the
precedent that is established within the circuit, unless there has
been some wider review by the court sitting en banc.
Senator Biden. One of the things I have learned as a Senator,
I have been here a while, is that everything I have ever written
has been read much after the fact. No one read it when I wrote it
when I was in law school, but they sure read it now. You wrote an
article, I believe at Georgetown, dealing with foreign intelligence
gathering.
You wrote that “although the intelligence function is subject to
the shared powers of Congress and the President, it is a function
which constitutional theory and practice is entrusted primarily to
the President, and over which he has significant independent
power.”
You went on to claim that “because access to information is the
very heart of the President’s ability to wield these powers, no
amount of congressional action should be able to prevent him from
gathering the intelligence he deems necessary in the exercise of
these powers.”
You may very well be in the Third Circuit, and it is a very hot
topic now, as you know. The Foreign Intelligence Surveillance Act,
so called FISA, which I co-sponsored and wrote.
Does that automatically mean that the congressional definition of
what the last stop on the train is is one that automatically would
be dismissed, that there is no ability of Congress to in any way af-
fect the President’s gathering of information as long as it is not in-
consistent with the Fourth Amendment?
Judge Jordan. No, sir. I really wish that I had written on the
Uniform Commercial Code when I was a law student.
[Laughter].
154
Senator Biden. I do not know anything about the Uniformed
Commercial Code.
Judge Jordan. But who knew, right, 22 years ago?
Senator Biden. You tend to ask only those questions you know
something about.
Judge Jordan. Yes. Yes. Senator, when I was writing that article
lo those many years ago, I was endeavoring, for myself, to under-
stand the framework that Justice Jackson had laid out in the steel
seizure case, and get my arms around, as best I could, issues that
were then very topical. As you have noted, they are topical again
today.
Senator Biden. You wrote that case about the time I was writing
the law. That is worrisome to me that I am that old.
[Laughter],
Judge Jordan. As I tried to put into context, this is an area
where politics and law intersect in a dramatic way, and that these
are not easy cases. I mentioned FISA specifically and tried to ad-
dress it in that article as well. If the matters were to come before
me today, I can assure you that I would be giving it the most care-
ful attention. And not to denigrate my work before because, frank-
ly, I do not know how it stacks up now. I have not really given it
as critical a read as perhaps I should.
But hopefully with a mature viewpoint on the law and with the
recent decisions that have come out, including some very recent
pronouncements from the Supreme Court, I would be in a position
to do justice to a structural constitutional issue like that.
Senator Biden. Thank you.
I say to the district court nominees, I do not have any questions
for you. I have read your backgrounds and I am prepared to sup-
port you. But I am reminded of something that a man for whom
I served under in this court, James 0. Eastland from Mississippi,
an old fellow who ran this committee for a long, long time, and I
sat at the very end, the most junior member of the committee.
One day, Mr. Chairman, he asked me whether I would come
down to Mississippi and campaign for him. The reason was, they
were running the campaign about, he was getting too old.
At that time, I was 32 years old. My job was to go down and
point out, which was accurate, that even though he was 84, he was
more than twice my age, I had trouble keeping up with him, like
your nominee does keeping up with her mother. I had trouble doing
that.
I went down and there was a big event he had for all the Judges
that he had been involved in appointing in Mississippi. The room
was as full as this room. It was at a dinner. All of them got up
and said what you said, I want to thank the President for nomi-
nating me.
Then they got all finished, and they turned to the Chairman of
the Judiciary Committee, the most powerful man in the country at
the time, and he stood up and he looked out at all the Judges and
he said, “You all just got finished telling us how you got appointed
by Eisenhower and Kennedy and Carter.” Carter had been Presi-
dent. He said, ‘You all know why you are Federal judges, don’t
you? ” Everybody just looked. He said, “Because Jim Eastland said
so.”
155
[Laughter],
You are district court judges because of the Senators who nomi-
nated you and the President agreed. That has been the custom
here. So, the President did have to be convinced, and he clearly
was, that you are fully, fully worthy of the job.
Circuit court judges are different. Circuit court judges are the
place where Presidents have reserved the right, under the tradi-
tions of the Senate, because there are multiple jurisdictions, to pick
whom he or she wishes to be on the court and not feel obliged to
go through any senatorial picking process.
But I was just reminded of old Jim Eastland when you said that.
I think that Senator DeWine, as they say in the southern part of
my State, “done good” in picking you, Judge.
I wanted to say for the record that I have received telephone
calls and notes from folks I know in Iowa who are in the opposite
party, strongly, strongly supporting Judge Jarvey.
I think, Ms. Howard, you did not need any notes. You are obvi-
ously qualified. So I want to thank you all for being here. Thank
you for being willing to serve, and thank your families for being
here.
As I indicated to the Chairman, I am not able to stay. I have an
appointment, that I am now a few minutes late for, at 3:00. But
I wish you well, Judge Jordan. I think you will make a fine Judge.
Mr. Chairman, thank you for convening the hearing. Thank you
all.
Judge Jordan. Thank you, Senator.
Senator DeWine. Senator Biden, thank you very much.
I do have a few questions, though. Let me turn to our district
court nominees. I am going to ask all of you some general ques-
tions. And we will start with you, Judge Howard, then we will go
right down the line.
Let us start with your views on settlement procedures and what
the proper role of a judge is in settlement procedures. Judge?
Judge Howard. Thank you for allowing me to comment on that,
Senator. The Middle District of Florida, as I am sure you know, is
one of the busiest districts in the Nation.
We have the seventh highest weighted caseload, so we rely a
great deal on settlement conferences. Most of our Judges, our dis-
trict judges, refer parties to the Magistrate Judges to conduct set-
tlement conferences. I find them to be a very valuable tool.
It is the opportunity for the parties to once again take control of
the process. Frequently it allows them to get an outcome that
would not be possible simply through litigation.
The parties tend to be very satisfied with that. So I think it is
a very useful tool, both for allowing people their respect for the ju-
dicial system, and also for reducing our caseload.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Thank you, Senator. Before I respond to the ques-
tion directly, I neglected to mention that I am also joined here
today by a longtime friend, Matthew Novak, and I am honored by
his presence as well.
I am a strong proponent of court-sponsored alternative dispute
resolution. As a Magistrate Judge, I have conducted over 500 medi-
ations, summary jury trials, and other settlement techniques.
156
My anecdotal experience is that 90 percent or more of our civil
litigants do not want a full-blown trial. For those folks, I believe
that is important to offer another effective way to resolve their dis-
putes. So I fully support court-annexed alternative dispute resolu-
tion.
Senator DeWine. Judge Lioi?
Judge Lioi. Yes. Thank you for the opportunity to respond, Sen-
ator. I, as a State court trial judge, oftentimes will defer cases to
settlement negotiations. We have a wonderful mediation program
in Stark County.
If I am fortunate enough to be confirmed to the district court
level, it is my understanding that the U.S. district court for the
Northern District has a very comprehensive alternative dispute
resolution program where they offer the parties a variety of dif-
ferent dispute resolution mechanisms, from arbitration, to medi-
ation, to early neutral evaluation of a case, to summary jury trials.
I would make use of all of the tools to assist parties in resolving
their disputes efficiently and effectively. It has been my experience
that attorneys and parties embrace alternative dispute programs.
Senator DeWine. Judge Howard, let me turn to another issue
that I experienced when I was a county prosecutor many, many
years ago, and I think most attorneys who practice much in court
experience, and that is the balance between a judge who needs to
control the courtroom and a judge who sometimes goes too far, at
least from the attorney’s point of view, and does not let you try
your case. How do you deal with that? I want to try my case if I
am a lawyer, but obviously you have to control what is going on
in your courtroom. How do you do that?
Judge Howard. Well, Senator, I think that being a trial judge re-
quires a very careful balance, because you absolutely have to con-
trol the courtroom. It is necessary for the respect for the process.
It is necessary to assure that lawyers treat the litigants with dig-
nity and respect at all times.
Certainly an advocate needs to be permitted to try his case, as
you say. But there are permissible bounds of advocacy and it is the
role of the judge to impose those.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Thank you, Senator. I see no inconsistency be-
tween keeping control of a courtroom and allowing lawyers to try
their case. There are two different issues. I have steadfastly stayed
out of the advocacy business as a judge. I believe that it is the pre-
rogative of the lawyer to be in control of their case.
For that reason, I do not ask questions of witnesses during jury
trials for fear of the appearance in front of the jury that I am too
far into the litigation. I have had no difficulty controlling my court-
room and I have never raised my court in order to do it.
Senator DeWine. Judge Lioi?
Judge Lioi. Yes. I concur with the comments of my fellow nomi-
nees, that the role of a judge is to ensure due process. There is a
careful balance that must take place, but the goal of the pro-
ceedings must be the orderly administration of the law.
It is very important that while you permit attorneys to try their
cases, that you also make sure that the trying of a case is done
157
within the proper parameters of the code of responsibility, and also
that everyone in the proceedings gets due process.
Senator DeWine. Let me ask, starting with you, Judge Lioi, why
you want to be a Federal judge.
Judge Lioi. Thank you for the opportunity to answer that ques-
tion, Senator. I have had the privilege and honor of serving the
public as a State court judge for nearly nine years now and I take
my duties and responsibilities very seriously to administer cases
and controversies which come before me impartially, fairly, and I
consider it a very high honor to be considered to serve on the Fed-
eral court bench.
I cannot imagine a higher honor for a sitting judge in a State
court to be considered for a Federal position. I would welcome the
opportunity to administer cases on the Federal bench.
While I would still have the opportunity to apply case law in di-
versity cases, I would also have the opportunity to decide cases and
controversies involving Federal law. And again, if I am fortunate
enough to be confirmed, I would welcome and embrace that oppor-
tunity.
Senator DeWine. Judge Jarvey?
Judge Jakvey. Thank you, Senator. I have devoted my entire ca-
reer to public service in Federal Court. Over the last, almost 19
years now of being a U.S. Magistrate Judge, I have had the privi-
lege to preside over cases and controversies involving some of the
most complex disputes in Iowa.
After this amount of time, I believe that I am well qualified for
the position. And, frankly, I am just looking for more challenges.
I look forward to the opportunity to take on more responsibility
and a steady stream of bigger challenges. Thank you.
Senator DeWine. Judge Howard?
Judge Howard. Thank you, Senator. I am honored to serve as
a Magistrate Judge in the Middle District of Florida right now. It
is an amazing opportunity, and at the same time a very humbling
experience, and one which I love.
I recognize that the decisions that I would face, if I were fortu-
nate enough to be confirmed as a district judge, would be more
challenging decisions. They are more challenging intellectually,
they are more challenging just sort of on a gut level, and I embrace
that.
I was raised by parents who immigrated to this country with
nothing, basically, but their education. They never let my brother,
my sister or I forget how fortunate we were to be here and to have
the opportunities we have. They were great role models in teaching
us that we owed something back.
For me, the opportunity to serve as a district judge is the oppor-
tunity to continue to do what I love and to serve my country, so
it makes it a very easy decision. I simply offer myself in that serv-
ice.
Senator DeWine. Judge Lioi, you chaired the Supreme Court of
Ohio Board of Commissioners on Character and Fitness. How has
this experience helped shape your views of the legal profession?
What impact, if any, might that have on your work as a Federal
Judge?
158
Judge Lioi. Thank you for the question, Senator. It has been an
honor for me to serve on the Board of Commissioners on Character
and Fitness for the Supreme Court. I believe that all lawyers and
Judges should engage in activities which promote competence in
the legal system and improve the legal system.
This is one small way that I have been fortunate enough to con-
tribute to the profession in ensuring that the individuals who are
licensed to practice law in Ohio have the requisite character and
fitness qualifications to enjoy the privilege of being licensed.
Service on this board has just underscored for me the qualities
and characteristics that are necessary in a candidate for admission
to the practice of law, the honesty, integrity, trustworthiness that
are required of these individuals who will in turn serve their cli-
ents and the public.
So, it has just been a great honor to serve on this board, to serve
the bench, the bar, and the public. It has just, as I said, under-
scored the need for professionalism in the profession.
Senator DeWine. Judge Jarvey, tell us a little bit about your ex-
perience at the Justice Department and how that may impact on
your work on the bench.
Judge Jarvey. My experience at the Department of Justice was
just a phenomenal beginning to my trial career. I tried cases in
Federal courts all across the country, appeared before well over 50
Federal district court judges, and argued many appeals.
The experience of practicing in front of so many different Judges
gave me an opportunity to see so many things that I appreciated
and respected, and a number of things that, frankly, I did not.
If confirmed as a district court judge, I would employ those prac-
tices that I have been employing that I learned from judges across
the country during my experience at the Department of Justice.
Senator DeWine. All right.
Judge Howard, in your experience as a magistrate judge, how
has that prepared you to serve on the district court?
Judge Howard. Well, Senator, as a magistrate judge, I perform
a subset of the responsibilities of an Article 3 Judge. I am very for-
tunate, as I mentioned earlier. Because the Middle District is as
busy as it is, the Middle District fully utilizes its magistrate judges.
We enjoy the full authority that is permissible under the statute.
So over the past three years, I have faced many of the very same
decisions and the types of issues that I would face if confirmed as
a district judge.
In civil cases, on consent, I, in fact, sit as a district judge, and
also on referral from the district judges handle many dispositive
motions. So, I think it has given me a very unique opportunity to
work with our district judges, to learn from them, and to do some
of the same things that I would do if I am confirmed.
Senator DeWine. I have one final question for each one of you.
Supreme Court precedents are, of course, binding on Federal circuit
court judges, and both Supreme Court and Federal circuit court
precedents are binding on district courts.
Are you committed and willing to follow the precedents of the
higher courts faithfully and give them full force and effect, even if
you might personally disagree with those precedents? Judge Jor-
159
dan, your question, of course, would be in regard to the Supreme
Court.
Judge Jordan. The answer to that is, absolutely, Senator.
Senator DeWine. Judge Howard? Judge Howard. And I answer
it in the same way, absolutely.
Senator DeWine. Judge Jarvey?
Judge Jarvey. Absolutely. Yes.
Senator DeWine. Judge Lioi?
Judge Lioi. Absolutely.
Senator DeWine. The record will remain open. You may get ad-
ditional questions from members of the committee. If you do, we
would suggest that you respond to them as quickly as possible.
For the record, I have a statement for the record from Senator
Nelson, I have a statement from Senator Leahy, and Senator
Grassley’s full statement for the record as well.
[Whereupon, at 3:15 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record follow.]
160
QUESTIONS AND ANSWERS
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CHAMBERS OF
KENT A JORDAN
DISTRICT JUDGE
LOCKBOX 10
S44 KING STREET
U,S. COURTHOUSE
WILMINGTON. DELAWARE 19801
(302} 673*001
September 13, 2006
The Honorable Arlen Specter
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
Attached are my responses to written questions from Senator Leahy.
KAJ.cas
Attachment
cc: The Honorable Patrick J. Leahy
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510
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Responses of Kent A. Jordan
Nominee to the U.S, Court of Appeals for the Third Circuit
to the Written Questions of Senator Patrick J. Leahy
1. In 2003, you addressed a conference of Pi Sigma Alpha chapters from colleges in
Utah on the importance of judicial self restraint, saying “[i]t takes courage to exercise
self-restraint: to deny a sympathetic criminal defendant’s motion, to refuse relief to a
sympathetic civil plaintiff suing a powerful and perhaps unappealing corporate
defendant, to decline the demand that a law be struck down, even though the politics
behind it are distressing.” However, often judges need to have the courage to step in
and protect rights. One of the central questions I have for any judicial nominee is
whether he or she understanding the role of the courts and their responsibility to
protect the constitutional rights of individuals, especially the less powerful and
especially where the political system has not
A. Can you discuss your view of the court’s responsibility to intervene to
ensure that the rights of all citizens are protected and the consequences
that would result if it failed to do so?
Response; It is the obligation of the federal courts to ensure that the rights of all citizens are
protected. In the speech referred to above, I endeavored to explain that “a judge must have
respect both for the rights of the majority, i.e., for democratic processes of our Republic, and
for the rights of individuals." I went on to cite the courage of Judge James E. Horton, Jr. in
the Scottsboro case as a dramatic example of the importance of judges standing up for
individual rights even in the face of overwhelming prejudice and pressure. It was
immediately after citing that example that I turned to the language quoted in the question
above, as a way of making the point that, just as individual rights must be respected
regardless of the pop ularity of legal positions in a particular case, so too majority rights must
be respected regardless of the policy preferences of an individual judge. A failure of the
courts to fulfill their fundamental function to administer the laws without fear or favor would
ijeave us without the benefit of the protections provided for all in the Constitution.
i B. What assurances can you give that litigants coming into your courtroom
will be treated fairly regardless of their political beliefs or whether they
| are rich or poor, defendant or plaintiff?
Response; I can give my complete assurance that that will be the case, and I believe my
record supports that assurance. I have based my decisions as a district court judge on the
merits of litigants' legal positions, not on their socioeconomic status or any other non-legal
basis.
2, Earlier this month, Judge J. Harvie Wilkinson of the U.S. Court of Appeals for
the Fourth Circuit published an op-ed in the Washington Post opposing the use of
constitutional amendments to ban same-sex marriage. ( See J, Harvie Wilkinson III,
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“Hands Off Constitutions; This Isn’t the Way to Ban Same-Sex Marriage, 1 * The
Washington Post, September 5, 2006), Judge Wilkinson argued against the passage of
constitutional amendments banning gay marriage and wrote that if the six such
amendments on state ballots this fall pass, “the first principles of American law will be
further endangered."
A. Judge Wilkinson wrote in his op-ed that the amendments are not needed
for “protection" against gay marriage because states already have this
protection through the Defense of Marriage Act and public policy
defenses allowed under the full faith and credit clause. Do you agree with
Judge Wilkinson's analysis? Does it imperil die public's confidence that
a judge will have an open mind if that judge has already weighed in
publicly on the legal issues involved in a case?
Response: As a federal district court judge, it would not be appropriate for me to comment
on the statements of another judge. It is my practice to refrain from commenting publicly on
the merits of legal arguments relating to matters that may come before me. It would not be
appropriate for me to comment on the proposed Federal Marriage Amendment, as that
amendment, if ratified, could come before the federal courts.
B. Judge Wilkinson criticized the Massachusetts Supreme Court for
beginning “the rush to constitutionalize* describing the holding by that
court that the constitution protects the right to marry, as “concocted" and
denigrating it as “constitutional excess.” Do you believe it is proper for a
sitting judge to use a public forum to criticize the decisions of other
courts?
Response: Please see response to Question 2.A., above.
C. Judge Wilkinson wrote that, “The Framers meant our Constitution to
establish a structure of government and to provide individuals certain
inalienable rights against the state. They certainly did not envision our
Constitution as a place to restrict rights or enact public policies, as the
Federal Marriage Amendment does.” Do you agree with Judge
Wilkinson's analysis of the Federal Marriage Amendment that it would
restrict rights? Do you agree with Judge Wilkinson that the Framers did
not envision our Constitution as a place to restrict rights?
Response: Please see response to Question 2.A., above.
3. Generally, federal judges have great discretion when possible conflicts of interest
are raised to make their own decisions whether or not to sit on a case, so it’s important
2
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that judicial nominees have a well-thought out view of when refusal is appropriate.
Former Chief Justice Rehnquist made clear on many occasions that he understood that
the standard for recusal was not subjective, but rather objective. It was whether there
might be any appearance of impropriety. How do you interpret the recusal standard
for federal judges, and in what types of cases have you recused yourself and do you
plan to recuse yourself? I’m interested in specific examples, not just a statement that
you’ll follow applicable law.
Response: To my recollection, I have not had to recuse myself for any financial conflict, but
I have had to recuse myself in a case in which I concluded that, under 28 U.S.C. C 455(a) my
impartiality might reasonably have been questioned. The case is a political corruption
prosecution in which one of the defendants asserted the intention to call as a witness at trial
one of my colleagues on the bench. That defendant filed a recusal motion, and I ruled that,
[sjince a defense effort to subpoena [the judge] cannot be rejected without
consideration, the inquiry necessarily turns to whether reasonable people could
question my role as the one doing the considering. I think they could. Indeed, I
would be surprised if they did not. This is a relatively small court, with four active
trial judges, including me. Without presuming to speak for anyone but myself on how
an objective observer would see this court, I am persuaded that one could reasonably
believe that we four judges see each other regularly, that we have developed
professional respect, appreciation, and friendship for one another, and that a natural
empathy may be unavoidable in seeing a colleague’s reputation and privacy threatened
by embroilment in a criminal prosecution. Real or not, partiality under these
circumstances could fairly be perceived to be an issue. Since the judicial role must be
filled by one whose partiality cannot be reasonably questioned, I cannot continue in
this case.
United States v. Gordon , 354 F,Supp.2d 524, 528 (D. Del. 2005). In another case, one
involving a dispute over insurance coverage, I recused myself because it came to light that a
business entity whose actions allegedly caused the losses for which insurance proceeds were
sought was a company in which a friend of mine was a senior officer. Again, I determined
that an objective view of whether my impartiality might reasonably questioned required
recusal.
4. While in law school, you authored a note entitled “The Extent of Independent
Presidential Authority to Conduct Foreign Intelligence Activities," 72 Geo. L. J. 1855
(1984). You argued that "although the intelligence function is subject to the shared
powers of Congress and the President, it is a function which constitutional theory and
practice entrust primarily to the President and over which he has significant
independent power." Further, you wrote, “{bjecause access to information is at the very
heart of the President's ability to wield these powers, no amount of congressional action
should be able to prevent him from gathering the intelligence he deems necessary for
the exercise of these powers."
@005
3
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09/13/2008 21:13 FAX
A, You wrote this in 1984, six years after passage of the Foreign Intelligence
Surveillance Act (FISA), including a provision that it is the exclusive
means for wiretapping individuals in the United States for foreign
intelligence purposes. Do you still agree with the conclusions you reached
in your note? Why or why not?
Response: In writing that law student note twenty-two years ago, 1 was seeking to
understand and explain the application of Justice Jackson’s analysis in the Steel Seizure Case
to the question of the scope of Presidential authority to conduct foreign intelligence activities.
At that time, I observed that “the intelligence function is subject to the shared powers of
Congress and the President,” but that the President had some independent foundations in the
Constitution for undertaking intelligence activities. (See text following note 7.) Of course,
my choice of topics has turned out to be very topical today, so much so that I believe it would
be problematic for me to comment on how I would determine the issues raised and discussed
in that student note. There is recent litigation in the district courts challenging intelligence
gathering actions of the executive branch, and the issues addressed in the note are ones that I
ought not address in the abstract, as I had the liberty of doing as a law student, since they, or
ones closely akin to them, may come before me either in my current position or in the
position to which I will move if I am confirmed by the Senate. I can assure you, however,
that in the event these issues were raised before me in a case, I would address them not in the
abstract but in light of the then existing case and controversy and in light of the legal
developments that have occurred, and may yet occur, since I wrote that student note,
including more recent Supreme Court authority.
B. Last December, it was revealed that for four years President Bush has
authorized the NSA to conduct warrantless wiretapping of American
citizens, with no review by any court, including the FISA court
specifically established by law to review such requests. To justify this
practice, the President and his defenders have invoked a theory of
extraordinarily broad and largely unchecked presidential power. Do you
agree with the President’s defenders that there is a Commander in Chief
override giving a wartime President the authority to bypass the FISA
Court and authorize warrantless spying on U.S. citizens or to authorize
or excuse the use of torture in interrogations of enemy prisoners, despite
domestic and international laws prohibiting the practice?
Response: As noted in response to question 4.A., these are matters that have already been
and are likely in the future to be the subject of challenges in court, and I do not believe that it
would be appropriate for me to state a view on an issue that may come before me.
5, Four years ago (August 2002), the Office of Legal Counsel at the Justice
Department issued a secret legal opinion concluding that the President of the United
® 006
4
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09/13/2006 21:13 FAX
@007
States had the power to override domestic and international laws outlawing torture.
The memo sought to redefine torture and asserted that the President enjoys “complete
authority over the conduct of war" and asserted that application of the criminal law
passed by Congress prohibiting torture "in a manner that interferes with the president’s
direction of such core war matters as the detention and interrogation of enemy
combatants would be unconstitutional" It seemed to assert that the President could
immunize people from prosecution for violations of United States criminal laws that
prohibit torture.
This Justice Department memo was withdrawn only after it became public because it
could not withstand public scrutiny. The Attorney General said in connection with his
confirmation hearing that this extreme legal opinion no longer represents the Bush
Administration’s policy and with its having been officially withdrawn you will not likely
be confronted with a case that turns on this memorandum.
What is your view of the legal contention in that memo that the President can
override the laws and immunize illegal conduct?
Response: I have not read the referenced memo. Article H, section 3, of the Constitution
requires the President to "take Care that the Laws be faithfully executed ... ." To the extent
that the memo, which has been withdrawn, is in conflict with the Constitution, I would not
agree with it.
6. Over the past decade and a half, the Supreme Court has struck down an
unprecedented number of federal statutes, most notably several designed to protect the
civil rights of Americans, as beyond Congress’s power under Section 5 of the
Fourteenth Amendment, for example, Flores v. City of Boerne, 117 S. Ct 2157 (1997),
Kimel v Florida Board of Regents , 120 S. Ct 631 (2000), and Board of Trustees v. Garrett ,
19 S. Ct 2240 (1999). The Supreme Court has also recently struck down statutes as
being outside the authority granted to Congress by the Commerce Clause, such as in the
case of US. v. Lopez, 115 S. Ct 1624 (1995) or US. v. Morrison, 120 S. Ct 1740 (2000).
I am hopeful that the Court’s decision last year in Gonzales v. Raich, 125 S. Ct. 2195
(2005) signals a turn away from the diminishing of the authority of Congress to legislate
to protect the American people. What is your understanding of the scope of
congressional power under Article I of the Constitution, in particular, the Commerce
Clause, and under Section 5 of the Fourteenth Amendment?
Response: Supreme Court authority holds that the Commerce Clause provides broad
regulatory power to Congress. The court has "reiterated that when a general regulatory
statute bears a substantial relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence.” Gonzales v. Raich » 125 S.Ct. 2195,
2206 (2005) (internal quotation marks omitted). Similarly, as to Section 5 of the Fourteenth
Amendment to the Constitution the Court has recently emphasized the breadth of
5
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Congressional power, saying, "[wjhile the Members of this Court have disagreed regarding
the scope of Congress's 'prophylactic' enforcement powers under § S of the Fourteenth
Amendment, no one doubts that § 5 grants Congress the power to 'enforce ... the provisions'
of the Amendment by creating private remedies against the States for actual violations of
those provisions. ... This enforcement power includes the power to abrogate state sovereign
immunity by authorizing private suits for damages against the States." United States v.
Georgia, 126 S.Ct. 877, 881-82 (2006) (internal citations omitted; italics in original). As a
lower court' judge, I am bound to apply the precedents of the Supreme Court in this area.
6
167
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATOR * OHIO
Mike DeWine
FOR IMMEDIATE RELEASE CONTACT: BREANN GONZALEZ
SEPTEMBER 6, 2006 ANDREW LANGWORTHY
(202) 224-2315
DEWINE STATEMENT [AS PREPARED]:
NOMINATION HEARING FOR JUDGE SARA LIOI
Introductory Remarks From Judiciary Committee Hearing
It is my great honor to introduce fellow Ohioan Judge Sara Lioi to the Members of the Judiciary
Committee today. Judge Lioi currently serves in the General Division of the Stark County
Common Pleas Court, and President Bush has nominated her to serve as a Federal Judge in the
Northern District of Ohio.
At this point, I’d like to extend our welcome to Judge Lioi’s family and friends who are with her
today. There are a number of you here, so let me start with Judge Lioi’s mother Rosaria; her
sister Mel Lioi, who I should note is the Assistant Superintendent of the Stark County
Educational Service Center, and her sister Mary Germann, plus her cousin Helen Garafalo. She
also has brought several friends, including Diana Pittman; Judge Mike Howard, from the Stark
County Family Court, and Tim and Debby Bentivegna. Thank you all for joining us. I know
you must be very proud of Judge Lioi’s accomplishments, and of her nomination to the Federal
bench.
Judge Lioi has had a distinguished legal career, a career with a breadth of experience and
accomplishment that has clearly prepared her to be a successful Federal judge. To begin, she
graduated summa cum laude from Bowling Green University in 1983, and she then attended the
Ohio State University College of Law and graduated with her J.D. in 1987. Judge Lioi started
her legal career as an associate at the law firm of Day, Ketterer, Raley, Wright & Rybolt Ltd. in
Canton, OH. She distinguished herself in her principal areas of practice - appellate advocacy and
general litigation - and became a partner in 1993. Judge Lioi’s colleagues outside the firm also
thought very highly of her, and she was elected to serve on the executive committee of the Stark
County Bar Association during this time.
Her service in the Bar Association was an early indication of her long-term commitment to legal
ethics and professionalism, a commitment that has been one of the defining aspects of her legal
career. Even before becoming a judge, she served on the Supreme Court of Ohio Board of
Commissioners on Grievances and Discipline, which is responsible for issuing final
recommendations to the Supreme Court on forma! disciplinary charges against Ohio’s lawyers
and judges. It is also responsible for monitoring and assisting the certified grievance committees
in the regulation of the legal profession, and for issuing advisory ethics opinions.
-more-
168
-page 2-
Her continuing work in this regard has broadened and enriched her understanding of the legal
profession and the responsibilities of the lawyers and judges who make up the bar.
Judge Lioi continued as a partner in private practice with Day, Ketterer until 1 997, when she was
appointed by then-Govemor George Voinovich to the General Division of the Stark County
Common Pleas Court, which has jurisdiction over civil and criminal cases. Judge Lioi swiftly
distinguished herself on the bench, and she was elected to the court in 1 998 and then re-elected
for a subsequent six year term in 2002.
As a sitting member of the bench. Judge Lioi is known for her extraordinary work ethic and her
willingness to put in long hours. Since taking the bench in 1997, she has disposed of over 9,500
cases and has conducted over 350 trials, more than 335 of which were jury trials. As any
practicing lawyer knows, and anyone with a legal problem knows, a judge who can efficiently
move her docket and conduct trials on a rapid schedule is a tremendous benefit to all of those
within the justice system; justice delayed is often justice denied, but Judge Lioi helps avoid that
problem by making sure that people have their day in court, and have it in a timely way.
Judge Lioi, however, is just as productive outside the courtroom as in it, and has continued to be
involved in issues of legal ethics and professionalism.
She became a member of the Supreme Court of Ohio Board of Commissioners on Character and
Fitness in 1996, and was appointed as Chair of the Board in 2002 - a position she still holds
today.
This is an extraordinarily important position, because the Board is responsible for reviewing the
cases of applicants who are seeking to become licensed to practice law in Ohio and for approving
applicants to sit for the bar examination.
From 2003-2006, she also served as a member of the Supreme Court of Ohio Task Force on
Rules of Professional Conduct. This important Task Force was dedicated to conducting a
comprehensive review of Ohio’s current legal ethics rules and standards, the American Bar
Association’s Model Rules of Professional Conduct, and the legal ethics rules promulgated by
other states. The Task Force recently completed its w'ork on the rules and submitted a proposal
to the Supreme Court of Ohio, which adopted the new rules on July 1 8, 2006, based upon the
Task Force’s recommendations.
Clearly, Judge Lioi believes strongly in the importance of maintaining high standards of
professionalism, civility, and ethics, and she has worked towards achieving those important
goals. In addition to her numerous activities, she has delivered speeches and presentations to
various civic organizations and other groups on matters such as the state court system, judicial
ethics, and the role of the judge in our system of government. Judges, lawyers, and law students
have heard her speak on topics such as professionalism, legal ethics, and character and fitness
standards. Her dedication to these issues is something we unfortunately don’t see enough of
nowadays.
-more-
169
-page 3-
Judge Lioi has also demonstrated a strong commitment to her community. She has served as
President, First Vice President, and Director for Community Services of Stark County - a non-
profit organization involved in a broad range of community activities. She has also served on the
boards of more non-profit organizations than I can name here. For some of these organizations
and agencies, she provided pro bono legal services during the time that she was in private
practice.
Not surprisingly, those who know Judge Lioi regard her with respect and admiration. Attorneys
who have worked in her courtroom - both Democrats and Republicans - speak of her glowingly,
describing her as “bright,” “conscientious,” “fair,” “impartial,” and “ethical.” She is known as a
judge who treats everyone who appears before her courteously and with respect. That is the sort
of judicial temperament that we hope for and expect from our judges. And, not surprisingly, the
ABA has given her a unanimous rating of “well-qualified,” which is the highest rating they give.
For all of these reasons, Sara Lioi is well-suited to be a Federal judge. She has the character and
intelligence that we want to see in a Federal judge. She is hard-working, dedicated, and
understands the role of a judge in our system of government. She is an excellent judge, and, just
as important, is the kind of person whom we can trust with the great responsibilities that come
with being a judge. 1 was proud to recommend her nomination for the United State District
Court in the Northern District of Ohio, and I am gratified that President Bush has nominated her
for that position. 1 believe that she will serve admirably as a Federal judge for the people of
Ohio.
###
170
Introductory Statement of Senator Charles Grassley for
Judge John Jarvey, Senate Judiciary Committee Judicial
Nominations Hearing, September 6, 2006
It’s my pleasure today to introduce to the Committee a
distinguished Iowan who has been nominated to the federal
bench. Judge John Alfred Jarvey, hails from Cedar Rapids,
Iowa, and has been nominated to serve as a United States
District Judge for the Southern District of Iowa. He is an
extremely qualified individual, and I’m proud to be here to
support this nomination.
Judge Jarvey was bom in Minneapolis, Minnesota, and is
married to Mary George Jarvey, who is a piano teacher in
Cedar Rapids. By way of background, Judge Jarvey
graduated from the University of Akron in 1978 with a
Bachelor’s Degree in Accounting, and received his JD from
Drake University School of Law in 1981.
171
Following law school, Judge Jarvey clerked for two years for
Judge Donald O’Brien of the United States District Court for
the Northern District of Iowa. In 1983, Judge Jarvey joined
the United States Department of Justice’s Criminal Division
as a trial attorney, where he prosecuted drug, tax evasion,
money laundering, and firearms cases. While at the Justice
Department, Judge Jarvey specialized in prosecuting medical
professionals involved in pharmaceutical drug diversion.
Since 1987, Judge Jarvey has been the Chief United States
Magistrate Judge for the United States District Court,
Northern District of Iowa. In this position, Judge Jarvey has
presided over a wide range of criminal and civil cases, such
as cases involving personal injury, employment
discrimination and other employee rights, patents, copyrights,
and other complex commercial disputes. In addition, since
1993, Judge Jarvey has been a Trial Advocacy instructor at
the University of Iowa Law School.
2
Judge Jarvey enjoys tremendous support from his peers. I
received many letters from the Iowa legal community praising
Judge Jarvey’s judicial temperament, courteousness to all
litigants, and respect for and commitment to our judicial
system. Many contained favorable comments about Judge
Jarvey’s judicial ethics and abilities as an administrator.
Numerous other letters contained complementary statements
about Judge Jarvey’s intelligence, command of the law and
rules of evidence, fairness, and respectful judicial demeanor
in court.
For example, one attorney wrote, “Judge Jarvey’s decisions
are thoughtful and well reasoned. He clearly is guided by the
rule of law and does not legislate from the bench.” Another
wrote, “What is clear to me from my experience with
Magistrate Jarvey is that he is, first and foremost, an
exceptional legal mind. His ability to grasp complicated and
dense fact patterns, coupled with his ability to analyze these
173
fact patterns in a clear and concise manner, is well known and
respected in our district. He issues decisions which are well-
reasoned and in harmony with the law of our jurisdiction.
And above all, he is fair.”
Another attorney commented, “Judge Jarvey is unfailingly
courteous to litigants, their lawyers and to jurors. His
demeanor on the bench helps to build confidence in the
judicial system. His rulings are fair, carefully considered and
respectful. He maintains control of his courtroom in a quiet
and reassuring manner. Judge Jarvey clearly has the support
of the practicing bar. In an astounding number of cases,
parties have specifically chosen Judge Jarvey to handle their
civil lawsuits through a consent procedure that requires both
sides to agree.” Finally, another attorney wrote “John Jarvey
possesses the fierce, incorruptible independence and integrity
that is indispensable in the best of public servants .... you
will never find a more straight arrow than John Jarvey.
4
This is a man who has his priorities right - God, family, work
- in that order.”
Today, Judge Jarvey comes before the Senate Judiciary
Committee accompanied by his family, friends and
colleagues. I understand that his father, William Jarvey Sr.,
and his brother, sister and nephew are here today. I believe
?£- AtT
that Chief Judge 1$^& is here, as well Iowa friends and
colleagues Marjorie Krahn and Matthew Novak. I’m sure
that they’re all very proud to lend their support.
Judge Jarvey has had a distinguished legal career and shown
tremendous dedication to public service. He’ll be a great
asset to the United States District Court of the Southern
District of Iowa. As I’ve already noted, so many people who
know and work with this man agree that Judge Jarvey is a
talented individual that deserves to be a federal judge - in
fact, the ABA unanimously gave Judge Jarvey the rating of
“well qualified.” I’m confident that Judge Jarvey possesses
175
the skill, integrity, commitment, intellect, and temperament
that we expect of all good judges.
So, it is with great respect and admiration that I recommend
this highly qualified individual to the Judiciary Committee for
favorable consideration.
6
176
Statement of Senator Tom Harkin
On the Nomination of John Jarvey to be
United States District Judge for the Southern District of Iowa
September 6, 2006
Good afternoon, Mr. Chairman and members of the
committee:
I am pleased to give my support to John Jarvey to be a
Federal District Judge for the Southern District of Iowa.
John is currently a Magistrate Judge in the Northern
District of Iowa, a position he has held for the past 18 years.
I had a chance to meet with him last month in Iowa — and
Mr. Chairman and members of the Committee - 1 can tell
you that after 18 years - 1 believe it is time for a promotion!
John Jarvey started his legal career as a clerk to Judge
Donald O’Brien, a excellent training ground for a federal
judge. In his years as a Magistrate, he has developed an
excellent reputation as a fair minded judge with a devotion
to the law, and as a strong believer in judicial independence.
i
177
Based on the calls and letters received by my offices
throughout Iowa, he has earned respect and admiration
across the board. In fact, the Chief Judge of the Southern
District, Robert Pratt and by the Clerk of the Southern
District Marjorie Krahn [Craw-N] are with us today to
demonstrate their support.
In his years as a Magistrate, John Jarvey has devoted a
tremendous amount of time and energy to successful
mediations, including a difficult tribal dispute in Iowa. He
also regularly teaches the trial skills he developed as a
federal prosecutor to students at the Drake University and
the University of Iowa law schools. And as anyone who has
spoken for more than a few minutes to John Jarvey knows
he is also a committed husband and father.
In selecting John Jarvey to be a Federal District Judge,
I believe the President has made a very good choice and I
look forward to his speedy confirmation. Thank you Mr.
Chairman.
178
Statement of Senator Patrick Leahy
Ranking Member, Senate Judiciary Committee
Hearing on Judicial Nominations
September 6, 2006
Today, with less than four weeks left in this legislative session, the Committee will hear
from four candidates for lifetime appointments to the Nation’s federal courts. They are:
Kent A. Jordan, nominated for a vacancy on the U.S. Court of Appeals for the Third
Circuit; and three district court nominee, Sara Elizabeth Lioi for the Northern District of
Ohio; Marcia Morales Howard for the Middle District of Florida; and John A. Jarvey for
the Southern District of Iowa.
I am concerned that these nominations, like so much of the Nation’s pressing business
over the last two years, could be derailed by the misguided priorities of the Bush-Cheney
Administration and the Republican leadership. With so little time remaining in this
Congress, I would have hoped that the Administration and the Republican leadership
would be anxious to make up for lost time by trying, at last, to address the many urgent
and unresolved needs of Americans. I hoped that we could joint together to change the
course of failed policies from the Persian Gulf to the Gulf Coast that have left America
less secure and set us back as a Nation. Regrettably, rather than learn lessons from these
failures, it appears that they are intent on staying the course in all things. The President
and his political advisors have stayed the disastrous course on judicial nominations by
choosing to renominate five extremely controversial choices for lifetime positions on the
Nation’s highest courts. This Administration seems intent on heeding the siren call from
the narrow, special interest groups on the right and picking fights. I urge the Senate
Republican leadership not to take the bait and, instead, join with us in the waning days of
this Congress to do the work of the American people.
Re-Nominations of Controversial Nominees
The five nominations the President has sent back to the Senate represent a troubling
group. The President re-nominated Judge Terrence Boyle to the Fourth Circuit despite
the fact that as a sitting United States District Judge and while a Circuit Court nominee.
Judge Boyle ruled on multiple cases involving corporations in which he held investments.
The President should have heeded the call of North Carolina Police Benevolent
Association, the North Carolina Troopers’ Association, the Police Benevolent
Associations from South Carolina and Virginia, the National Association of Police
Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well
as the advice of our former colleague, Senator John Edwards, to withdraw this ill-advised
nomination and not renominated him. Law enforcement officers from North Carolina
and across the country oppose the nomination. Civil rights groups oppose the
nomination. Those knowledgeable and respectful of judicial ethics oppose this
nomination. This nomination had been pending on the floor calendar in the Republican-
controlled Senate since June of last year when it was forced out of the Committee on a
party-line vote. The Senate did the President a favor by returning this nomination to the
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White House before the summer recess. The President should not have re-nominated
Judge Boyle.
The President also re-nominated William Gerry Myers III to the Ninth Circuit. This is
another Administration insider and lobbyist whose record has raised serious questions
about his ability to be a fair and impartial judge. I opposed this nomination when it was
considered by the Judiciary Committee in March 2005. This was a nomination that the
so-called “Gang of 14” expressly listed as someone for whom they made no commitment
to vote for cloture, and with good reason.
Mr. Myers’ anti-environmental record is reason enough to oppose his confirmation. His
lack of independence is another. If anyone sought to proceed to this nomination, there
would be a need to explore any connections to the lobbying scandals associated with the
Interior Department and Republican lobbyist Jack Abramoff.
It is particular troubling to see Mr. Myers re-nominated because the President missed an
opportunity to be a uniter. I had suggested that he re-nominate Norman Randy Smith for
the vacancy created by the retirement of Judge Thomas G. Nelson from Idaho. Instead,
the President has again nominated Judge Smith to a California seat on the Ninth Circuit,
effectively stealing California’s seat. That is wrong. I support Senators Feinstein and
Boxer in their opposition to this tactic. I again urge President Bush to resolve this
impasse and turn Idaho’s vacancy into a judge by withdrawing the controversial Myers
nomination and nominating Judge Smith for the Idaho vacancy to which he could be
easily confirmed.
It is distressing that the President chose to re-nominate William James Haynes II to the
Fourth Circuit despite bipartisan concern about this nomination. As General Counsel at
the Defense Department, Mr. Haynes has been deeply involved in seeking to excuse this
Administration’s now discredited policies on the treatment of enemy combatants, the
interrogation and torture of detainees, and the creation of military commissions. In two
hearings, Mr. Haynes has refused to answer questions from Senators about these policies,
despite disturbing developments that have come to light that relate to those policies,
including the Abu Ghraib scandal and scores of other incidents of detainee abuse in
Afghanistan, Iraq, and Guantanamo Bay. In addition, new press reports, declassified
memoranda and letters from former high-ranking military officials have detailed Mr.
Haynes’s disregard for legal concerns raised by senior military and civilian lawyers
within the Armed Services about these policies and his efforts to subvert their advice. It
seems that Mr. Haynes ignored the policy concerns raised by military officers about the
effect of his policies on the safety of American troops and American credibility around
the world.
I have found inconsistencies between Mr. Haynes’ testimony and that of the uniformed
JAGs relating to their involvement in the development of detainee interrogation policies
to be particularly troubling. Although Mr. Haynes sought at his hearing in July to allay
some of these concerns regarding his disregard of the advice of uniformed JAGs, his
statements were contradicted by several JAGs who testified before the Senate Armed
Services Committee. Subsequently,
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Mr. Haynes sought to reconcile his testimony with that of the JAGs in a letter to the
Committee. Unfortunately, even this letter turned out to be inaccurate, as set forth in a
subsequent letter from Daniel DelPOrto, Mr. Haynes’ deputy at the Defense Department.
The President had an opportunity to move beyond this controversy by sending the Senate
a more qualified, consensus nominee. Unfortunately, he squandered that opportunity
with this re-nomination.
Finally, the President has re-nominated Michael Wallace to a vacancy on the Fifth Circuit
even though he received the first ABA rating of unanimously “not qualified” that I have
seen for a circuit court nominee in 25 years. The hearing on his nomination scheduled
for July 19 was cancelled, though not betore the Committee received written testimony
from the ABA regarding his rating. This testimony, which was confidential until leaked
to a conservative website, details the significant concerns raised by numerous jurists
around the country regarding Mr. Wallace’s judicial temperament, lack of commitment to
equal justice for the poor and minorities, lack of tolerance, and open-mindedness. It
details concerns from judges and lawyers that Mr. Wallace “may not follow the law” and
is driven by his “personal agenda.” Of course, the troubling issues raised in the ABA’s
testimony echo significant concerns about Mr. Wallace’s record on civil rights, his
opposition to the Voting Rights Act, his support for tax exemptions for Bob Jones
University, his opposition to prison safety regulations, and his attempt as President
Reagan’s director of the board of the Legal Services Corporation to undermine efforts to
provide legal services to low-income clients.
Continuation of Misguided Priorities
I wish that this were the first time this Administration and this Republican-led Congress
had diverted resources and attention from America’s needs. Unfortunately, President
Bush’s re-nomination of these controversial nominees is a continuation of a pattern of
misguided priorities that has plagued the Administration and the Senate’s Republican
leadership since the beginning of this Congress. Instead of urging his party to take early
and decisive action to pass comprehensive immigration reform, as he signaled he would
in February 2001 , the President began his second term campaigning to undercut the
protections of our Social Security system. As a result, at the start of this Congress in
2005, the Administration’s top priority was not increasing national security or the
economic security of working Americans who are sharing in a smaller piece of the
country’s wealth than they have in decades. Had the Administration been successful at
privatizing Social Security, it would have gutted the program that ensures for all
Americans that growing old does not mean growing poor. Thankfully, Americans
rejected this effort.
Like the Administration, the Senate’s Republican leadership turned away last spring and
summer from addressing the priorities of most Americans. They focused instead on the
fierce legal battle over the medical treatment of Terri Schiavo, who was in a persistent
vegetative state for more than a decade. Politicians engaged in extraordinary measures to
override what state courts determined to be her personal wishes. The power of the
Federal Government was wielded by some to determine deeply personal choices. The
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Republican leader even made a medical diagnosis on the floor of the Senate, and the
President cut short one of his vacations to back to Washington to sign legislation to
override the precise wishes of this one patient. The American people recoiled from this
misuse of the Government’s time and authority.
The President’s re-nomination of divisive nominees is a repeat of last Congress and last
year, when the Administration and the rubberstamp Republican Senate created a massive
confrontation over controversial nominees. The Senate narrowly averted the so-called
“nuclear option,” a bid to achieve one-party rule by thwarting the Senate rules. They
were willing to destroy a fundamental check and balance in order to be a more efficient
rubberstamp for this President. Thankfully, this attempt failed, but not before the Senate
expended much energy and lost precious time.
This summer the Republican leadership determined, despite the many pressing issues
facing the country and affecting Americans, to turn away from the legislative agenda to
focus on two constitutional amendments that would result in restricting the rights of the
American people. Although not among our Nation's most pressing priorities, the
constitutional amendments were considered and rejected. The marriage amendment and
the flag amendment would have artificially created division among the American people.
With more Americans in poverty and extreme poverty and more children without health
care, we must do better. With rising interest rates, rising mortgage rates, rising health
care costs, rising insurance costs, we must do better for America’s working families.
While corporate profits are taking a greater and greater share of our GNP, wages are
stagnant and those in charge refuse to allow a long overdue raise to the minimum wage.
We have just come through a summer of record high gas prices, and for many families,
the threat of record high home heating prices this winter looms around the comer.
The full agenda before us as we enter the final weeks of this legislative session reflects
how little the Republican leadership has accomplished, even with control of the White
House and both Houses of Congress. A steady course of misguided priorities have cost
Americans progress on real issues that matter most. And these failures to focus on our
real priorities have left America less secure.
The Republican-controlled Congress has yet to enact a federal budget. We are in
violation of the statutory deadline of April 15. We have passed but one appropriations
bill, and we are required by law to pass 13. We have yet to reconcile and enact lobbying
reform and ethics legislation. We have yet to deal with the skyrocketing cost of gasoline
and health care. We have yet to reconcile and enact a bipartisan and comprehensive
immigration reform bill. And for the second year in a row the Republican-led Senate will
not even take up the annual intelligence authorization bill.
As we commemorated the one- year anniversary of Hurricane Katrina last week, we were
reminded that the situation in the Gulf Coast remains a tragedy with serious human
consequences. We need to commit ourselves and our resources to helping our fellow
citizens who are still in need after the appalling lack of responsiveness by this
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182
Administration. We need to provide the assistance to that region of our country where
rubble remains a fixture of the landscape one year later. Many residents still do not have
homes to return to or jobs waiting for them when they get there.
Americans would be better served if we used our remaining time in this Congress to
address these vital issues than to focus on political fights over a handful of divisive and
failed nominations.
I look forward to hearing from the four nominees before the Committee today and I hope
that I will be convinced that they are the kind of nominees who understand that the role
of the judge is to act as a check and balance to protect the rights and liberties of all
Americans. I welcome the nominees and their friends and families to the Committee
today.
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STATEMENT OF OHIO SENATOR GEORGE VOINOVICH TO THE
COMMITTEE ON THE JUDICIARY ON THE NOMINATION OF SARA
ELIZABETH LIOI TO SERVE AS A JUDGE OF THE UNITED STATES
DISTRICT COURT
NORTHERN DISTRICT OF OHIO
September 6, 2006
Mr. Chairman and Members of this Committee, thank you for allowing me to speak
on behalf of a very deserving attorney from the state of Ohio. I am here to express my
strong support for Judge Sara Lioi, whom the President has nominated to serve on the U.S.
District Court for the Northern District of Ohio.
I welcome this Committee’s review of Judge Lioi, and I believe that you will come
to the same conclusion that I have; Sara Lioi is well-qualified to serve as a federal district
cotut judge and should be confirmed by the Senate.
Judge Lioi has a distinguished and impressive record as an attorney in private
practice, an Ohio Court of Common Pleas Judge, and a community leader. Moreover, she
has deep roots in Stark County, Ohio.
A native of Stark County, and the youngest of seven children. Judge Lioi graduated
from GlenOak High School and from Bowling Green State University, where she
graduated summa cum laude and earned the distinction of Phi Beta Kappa.
Judge Lioi went on to attend my law school alma mater, The Moritz College of
Law at The Ohio State University, receiving her law degree in 1987. After graduating
from law school. Judge Lioi joined the law firm of Day, Ketterer, the oldest law firm in
Stark County, Ohio, as an associate. Judge Lioi was later recognized by her colleagues
when they elected her to the firm’s partnership in 1993.
As an attorney, she represented individuals, schools, and other institutions of higher
learning, cities, small businesses, and multinational corporations. While in private
practice, she represented clients at both the trial and appellate levels.
In November 1997, I appointed Judge Lioi to fill a vacancy on the Stark County
Common Pleas Court. Later, she was elected to the unexpired term for which I nominated
her. In 2002, the voters of Stark County re-elected her to a full six-year term.
Since ascending to the bench. Judge Lioi has disposed of over 9,500 cases and
conducted over 350 trials, over 335 of which were jury trials. In sum, she has broad
courtroom experience, both on and off the bench. This extensive experience will serve her
well as a federal trial court judge.
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Judge Lioi has also earned the respect of her colleagues and fellow attorneys.
During her time as a practicing attorney, she served on the Supreme Court of Ohio Board
of Commissioners on Grievances and Discipline, and for over ten years, Judge Lioi has
served on the Supreme Court of Ohio Board of Commissioners on Character and Fitness,
including the last five as the Chair of this Commission.
I believe her service on these important commissions evidences the high esteem in
which members of the Ohio bar hold her, and is testimony of her excellent character.
Judge Lioi’s legal credentials are not the only reasons I support her nomination.
Today, too many people do not take the time to become involved in their communities;
however. Judge Lioi participates actively in a number of civic organizations. A graduate
of Leadership Stark County, she has remained active with that program and serves on the
boards of several not-for-profit community agencies, including Community Services of
Stark County, Stark County Humane Society, Walsh University Advisory Board, and the
Plain Local Schools Foundation.
I believe involvement in one’s co mm unity is important. We need judges who not
only have exceptional legal skills, but who also recognize how the law impacts individuals
and communities. I believe she has this understanding because she works in her
community every day.
As a result of Judge Lioi’s fine academic and professional achievements, I am not
surprised that the American Bar Association found her unanimously well-qualified to serve
as a federal district court judge.
In reviewing Judge Lioi’s academic and professional record it is clear that she is
well-qualified to serve as a judge on the U.S. District Court for the Northern District of
Ohio, and I look forward to this Committee’s swift review of her nomination.
Thank you.
###
NOMINATIONS OF NORA BARRY FISCHER,
NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF PENNSYLVANIA;
GREGORY FRIZZELL, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE NORTHERN DIS-
TRICT OF OKLAHOMA; LAWRENCE JOSEPH
O’NEILL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF CALI-
FORNIA; AND LISA WOOD, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DIS-
TRICT OF GEORGIA
TUESDAY, SEPTEMBER 12, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:08 p.m., in room
226, Dirksen Senate Office Building, Hon. Tom Coburn presiding.
Also present: Senators Specter and Feinstein.
OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR
FROM THE STATE OF OKLAHOMA
Senator Coburn. The Judiciary Committee will come to order.
Today we have a confirmation hearing for four of the President’s
judicial nominees. On behalf of the committee, I would like to wel-
come all four of you. Some of you have traveled considerable dis-
tances, and I appreciate your willingness to appear before us today.
I am particularly glad to see Judge Frizzell here, a fellow Okla-
homan. It is our hope that we can move all of your nominations
through the Committee quickly and get them voted on the floor be-
fore Congress goes out of session at the end of this month.
I know Judge Frizzell will be particularly glad to hear that, be-
cause his term on the State court expires in January. We are going
to do our best to make sure you have a job this winter, Judge.
I would now like to turn to our full Committee Chairman, Arlen
Specter, for any comments that he might have.
( 185 )
186
PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENN-
SYLVANIA, BY HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Well, thank you very much, Mr. Chairman,
for chairing this hearing. You have accurately stated the intention
of the Committee is to move these nominations through as prompt-
ly as possible, and I think it is realistic, unless something unfore-
seen occurs, to complete them before we adjourn at the end of this
month.
I also want to take a moment or two to join my distinguished col-
league, Senator Santorum, in the introduction of Nora Barry Fisch-
er to be U.S. District Judge for the Western District of Pennsyl-
vania.
Ms. Fischer comes to this nomination with an outstanding
record, academically and professionally. She graduated from St.
Mary’s College Magna Cum Laude in 1973, and has a law degree
from Notre Dame. She was editor at Callaghan and Company Legal
Publications in 1976 and 1977.
She was an associate at Meyer Darragh for 15 years, and then
became an equity partner in the Pietragallo law firm, and she cur-
rently is the Defense Litigation Practicing Group co-chair.
Included in her work has been administrative partner in charge
of recruitment and training. She has represented General Electric
in both toxic tort and product liability cases. She has had signifi-
cant mediation practice, having served as an adjunct settlement
judge and as an arbitrator for the Western District of Pennsyl-
vania, which gives her some judicial experience before approaching
the bench.
I would ask unanimous consent to put my full statement in the
record and a full resume before yielding, if I may, Mr. Chairman,
to Senator Santorum.
Senator Coburn. Without objection. It is my understanding, be-
cause of the time pressure on Senator Inhofe of a Committee hear-
ing, that he would be recognized first, if the Chairman has no ob-
jection to that.
Chairman Specter. Fine.
Senator Coburn. I want to welcome our fellow Senators here and
look forward to your statements.
Senator Inhofe, you are recognized.
PRESENTATION OF GREGORY FRIZZELL, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA,
BY HON. JAMES M. INHOFE, A U.S. SENATOR FROM THE
STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I am hoping also
that he will be allowed to introduce some of his family. Now, if he
had all of his family here there would not be time to do that. But
I am here today to support Judge Greg Frizzell, nominee for the
U.S. district court for the Northern District of Oklahoma.
His family is no stranger to the legal field. I can remember his
daddy, who is here in the audience today — I saw him when he
came in — Kent Frizzell. He served as Attorney General for the
187
State of Kansas. That is when I first got to know his family. Later
on when they moved to Oklahoma, we became very close friends.
He has had all kinds of experience in the past in serving the
Under Secretary of Interior, and he has taught at the University
of Tulsa Law School for, I do not know, over 18 or 20 years.
So given his father’s distinguished work, it is no surprise that
Judge Frizzell felt compelled to pursue a career in public service,
and his friends and colleagues have praised his professional quali-
fications and personal integrity, and all have emphasized his abil-
ity to rule fairly from the bench.
Someone who has been around as long as this young judge has
been around, you would think you would hear negative things. I
have never heard anything negative about him. Robert Sartin,
member of the Board of Governors of the Oklahoma Bar Associa-
tion said, “Judge Frizzell is a man of extremely good character and
high integrity, with a deep sense of personal responsibility toward
his fellow man.”
Judge Claire Eagan, who was before this Committee not too long
ago, praised him and talked about the urgency, the fact that that
court right now has three judges doing the work of six.
One of the prominent and well-respected attorneys in Oklahoma,
Joe Wohlgemuth of Norman, Wohlgemuth, Chandler & Dowdell in
Tulsa, called Judge Frizzell “a man of integrity and a straight
arrow”.
Before serving in the current position of district Judge of the
14th Judicial District of Oklahoma, Greg Frizzell had a long and
distinguished legal career and ample Federal experience.
After graduating with a law degree from the University of Michi-
gan, he clerked for Judge Tom Brett. Tom Brett is now in retire-
ment and there is no one who has a better reputation than he, and
he has praised and praised Greg Frizzell.
Also, Ralph Thompson, who is getting very close to retirement,
he is in senior status right now on the Federal bench in Oklahoma,
has praised him.
So, I just cannot think of anyone who has had a greater back-
ground and experience for this. He has held positions other than
judicial positions. He was the General Counsel to the Oklahoma
Tax Commission for a period of time. He has not only proven to be
an effective and legal professional, but he is a devoted husband and
loving father of six children.
Getting back again to Mr. Wohlgemuth, he recalls an incident
where Judge Frizzell, Mr. Chairman, had to stay late one night at
work and he brought all six kids so he could spend time with them
into the late hours. Anyone who can handle six kids while doing
his judicial work, I think can handle this job.
So, Judge Frizzell is a man of great moral integrity who has
proven his character in both his private and public life. I cannot
say enough about him and his qualifications to be the next U.S.
district court judge for the Northern District of Oklahoma.
Thank you very much.
Senator Coburn. Thank you, Senator Inhofe.
Senator Santorum?
188
PRESENTATION OF NORA BARRY FISCHER, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENN-
SYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. My colleague,
Senator Specter, I think adequately reviewed Nora Barry Fischer’s
resume.
Just let me comment on a couple of things. First, in general, Sen-
ator Specter and I have developed a system in Pennsylvania where
we have always tried to make sure that we have a balance on the
court, whether it is a Republican or Democratic administration.
During a Democratic administration we have worked out agree-
ments to have Republicans every fourth nominee. One in every four
would have to be Republican. We do the same when there is a Re-
publican President. We make sure that there is a Democrat in
there. Every four district court nominees, there is a Democrat in
the mix, and we do that by district.
In the Western District, we have been very fortunate to put some
really outstanding jurists on the court. The court has a very, very
strong reputation. Hopefully soon-to-be Judge Fischer would be an
excellent addition, but she is a Democrat. She is someone who,
when we put her forward in this political season, I have to tell you,
I was not sure what the reaction would be.
Let me assure you, the reaction has been unanimous from both
Republicans, Democrats, folks in the plaintiffs bar, the defense
bar, you name it. We have not received a single negative word
about Nora Barry Fischer.
Given, again, the intensity of the political scene in Pennsylvania,
I think it just speaks volumes for the kind of qualities that this
woman brings to her practice of law, to the professional associa-
tions that she is involved with in the law, and as a past president
of the Allegheny County Trial Lawyers Association, which is not
necessarily an organization that is particularly complimentary to
me on occasion, but she was an outstanding leader there and some-
one who has tremendous respect in our community.
So when Senator Specter and I went through the names and we
identified her name on the list, the feedback, again, we have gotten
was extraordinary before we nominated her, and I will tell you, has
been unanimously extraordinary since.
My understanding from the Committee is that she was rated
unanimously “Well Qualified” by the ABA. I am not surprised
about that. She is someone who has been a trailblazer, as a woman
in Pittsburgh in the legal profession, and has, as I said before, the
utmost respect.
I just mentioned lawyers. I should also say judges who have con-
tacted us, including some of her future colleagues, I hope, on the
court, who are ecstatic that her name has been placed in nomina-
tion.
So, it is truly an honor for me to be here this morning to forward
her nomination and encourage this Committee and the full U.S.
Senate to act promptly on this nomination. Again, we have one va-
cancy and hope to have another one soon, so this is a court that
definitely needs to have this vacancy filled.
Thank you, Mr. Chairman.
189
Senator Coburn. Thank you, Senator Santorum.
Senator Chambliss?
PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA, BY
HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE
OF GEORGIA
Senator Chambliss. Thank you, Mr. Chairman. I very much ap-
preciate the opportunity to appear this afternoon before the com-
mittee, and to be back before the committee. As a former member,
I am particularly pleased to be back here.
Senator Coburn. As a matter of fact, I have my seat because you
are not here.
Senator Chambliss. I think you have my seat, Mr. Chairman. I
will always hold that against you, even though you are my dear
friend.
[Laughter.]
But I am here both to introduce and heartily endorse President
Bush’s nomination of Lisa Godbey Wood to be U.S. district Judge
for the Southern District of Georgia. In nominating Lisa Wood, the
President has demonstrated his commitment to ensuring both the
integrity and the quality of the Federal judiciary.
Lisa Wood is an extraordinarily qualified individual who comes
before this body at a time of urgency for the Southern District of
Georgia. Currently, this distinguished Federal bench has but a sin-
gle active Federal judge with the recent election by two judges to
take senior status.
This, in addition to recent health developments affecting one
such judge, highlights the need for swift action by the Senate to en-
sure that the administration of justice continues in this important
Federal District.
I, and the people of Georgia, appreciate you, Chairman Coburn,
along with Chairman Specter and Senator Leahy, for agreeing to
schedule this hearing today. I urge prompt action in reporting fa-
vorably her nomination, and prompt confirmation by the Senate.
Lisa has served with distinction as U.S. Attorney for the South-
ern District of Georgia since 2004. She was unanimously confirmed
by the Senate in November of that year, and since that time she
has effectively managed this important prosecution office, while
overseeing significant Federal criminal prosecutions, including suc-
cessful high-profile corruption cases and racketeering prosecutions
involving the fraudulent diversion of black market pharma-
ceuticals.
Lisa is a Summa Cum Laude graduate of the University of Geor-
gia, where she was Phi Beta Kappa, and the University of Georgia
Law School, where she was selected as a member of the Order of
the Coif and served as managing editor of The Law Review, and
Chief Justice of the Honor Court, among many other accomplish-
ments and honors.
Following graduation from law school, Lisa served as a law clerk
to Hon. Anthony A. Alaimo of the Southern District of Georgia be-
fore joining the Brunswick law firm of Gilbert, Harrell,
Summerford & Martin, where she actively litigated cases involving
product liability, employment law, medical malpractice, white col-
190
lar crime, and death penalty issues. She was elevated to litigating
partner after just three and a half years, which is very significant.
Ms. Wood served as president of the Brunswick Glynn County
Bar Association in 1995 after many years of service in other leader-
ship positions with the Bar Association.
She served as a Magistrate Judge of the Glynn County Mag-
istrate Court from 1998 to 2000, and is highly respected by mem-
bers of the bench before whom she has appeared and by members
of the bar who appeared before her and who served with her, in-
cluding opposing counsel.
Lisa has been active in community and civic associations, includ-
ing the YWCA. She is active in her church. Moreover, Lisa Wood
has contributed immeasurably to her profession, community,
church, and country, while being a devoted wife to her husband
Richard, and mother to two 4-year-old twins, Lachlan and Kath-
erine, all of whom are with her today.
I look back over here, Mr. Chairman, and I do not know what
you did, but you put one of them to sleep over here.
[Laughter.]
These two children are obviously beautiful little 4-year-old twins.
Her husband, Richard, has been a dear friend of mine for many
years. He is not nearly as good-looking as the twins are. But this
is a beautiful family, and I look forward to Lisa having the oppor-
tunity to introduce them to you.
Mr. Chairman, I urge the committee’s swift and enthusiastic ac-
tion to advance her nomination, and I look forward to the prompt
confirmation of Lisa Wood to the Southern District of Georgia, and
I thank you.
Senator Coburn. Thank you, Senator Chambliss.
Senator Isakson?
PRESENTATION OF LISA WOOD, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA, BY
HON. JOHNNY ISAKSON, A U.S. SENATOR FROM THE STATE
OF GEORGIA
Senator Isakson. Thank you, Mr. Chairman. I, at the outset,
want to express my appreciation to Gregg Nunziata for his help in
facilitating this hearing today, and I appreciate very much your
chairing it.
It is really an honor to introduce Lisa Godbey Wood to the com-
mittee, along with her husband Richard, her two children, and her
mom and dad, who sit there proudly.
I must mention, as part of the extended family, Hon. Judge Tony
Alaimo from the Southern District of Georgia who is behind me
and here today. He is a great servant of the United States of Amer-
ica, a great Georgian, and his service on the court for years is
greatly appreciated.
Mr. Chairman, in November of 2004, the U.S. Senate confirmed
the appointment of Lisa Godbey Wood as U.S. Attorney in the
Southern District of Georgia. In her term since that time she has
served honorably and well the people of the United States.
Senator Chambliss and I are in united support of her nomination
to the U.S. district court in Georgia, and urge the Senate to facili-
tate its approval at a rapid rate.
191
As Saxby as said, at the University of Georgia she was an Honor
graduate. In fact, she earned the Meinhart Award for the highest
grade point average all 3 years. She was the first Honor graduate
at the University of Georgia.
When she left the University of Georgia she went to clerk under
this distinguished judge, Tony Alaimo, in the Southern District
itself. She went into the private practice of law in 1991, became a
partner in 1995, and as I have said, because U.S. District Attorney
in 1996.
Her record of prosecution and indictments in the Southern Dis-
trict has been well-noted by Senator Chambliss. She is probably
the most universally popular nominee I have ever seen appointed
to the court since I have served in the Congress of the United
States and the U.S. Senate.
For me on a personal note, it is also very easy to make this intro-
duction. I have known Lisa and Richard since 1996. They are two
of our State’s most outstanding students. She will be a great Judge
on the court, and it is an honor for me today, as a U.S. Senator,
to give her my highest commendation to this Committee and to the
Senate.
I thank you, Mr. Chairman.
Senator Coburn. Thank you, Senator Isakson. I know that Sen-
ator Feinstein wanted to be here and is detained, so I might take
the liberty right now of reading the resume on Lawrence Joseph
O’Neill, the U.S. district Judge for the Eastern District of Cali-
fornia nominee.
Magistrate Judge Lawrence O’Neill was nominated to be a U.S.
district court judge on August 2, 2006. He received his B.A. from
the University of California at Berkeley in 1973, his M.P.A. from
Golden Gate University in 1976, and his J.D. from the University
of California, Hastings College of Law in 1979.
During law school, Judge O’Neill served as a legal clerk to Hon.
Roberts F. Cain of the First Appellate District of the California
Court of Appeals. Following law school, Judge O’Neill joined the
law firm of McCormick, Barstow, Sheppard, Wayte and Carruth as
an associate. He became a partner with that firm in 1984.
His practice focused almost exclusively on civil tort litigation.
While working for that law firm, he also taught classes for 6 years
as an Adjunct Professor at San Joaquin College of Law. He was
honored by that college for his teaching skills and was presented
with the “Professor of the Year” award.
In 1990, Judge O’Neill was appointed to the Fresno County Su-
perior Court. He served on that court until 1999, when he was ap-
pointed as U.S. Magistrate Judge in the U.S. district court for the
Eastern District of California.
Judge O’Neill has received numerous awards for his community
service, including the annual Judicial Award presented by the Rape
Counseling Service of Fresno County, and the “20 Years of Service”
award presented by the Fresno County Mock Trial competition pro-
gram.
While serving as a presiding judge of the Juvenile Courts of
Fresno County, Judge O’Neill was recognized for his outstanding
efforts to prevent child abuse with the Judy Andreen-Nilson
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Award. The Fresno County Juvenile Justice Commission also pre-
sented him with the “Award for Achievement in Juvenile Justice.”
Let me ask, if I might, first, unanimous consent to enter into the
record Ranking Member Senator Leahy’s statement, and that will
be done by unanimous consent, as well as the further statement of
my own.
Senator Coburn. I would ask our nominees to come forward. I
would also note that Senator Feinstein is on her way, and we will
give her the opportunity from the dais to present her recommenda-
tions for her nominee.
If you all would come forward, please.
If you would each raise your right hand.
[Whereupon, the nominees were duly sworn.]
Senator Coburn. By tradition, we will ask each of you to make
an opening statement, and then we will have some questions for
you. Hopefully this will be as painless as possible. We will inter-
rupt your statement, as one of you finishes, when Senator Fein-
stein arrives.
Ms. Fischer, please start.
STATEMENT OF NORA BARRY FISCHER, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYL-
VANIA
Ms. Fischer. Thank you, Mr. Chairman. I have no prepared
statement here today, but what I would like to do is, first, thank
you, Mr. Chairman. I would certainly like to thank the Senators of
my home State, Pennsylvania, Senators Santorum and Specter, for
their kind words.
In addition, I thank President Bush for considering me, and also
nominating me to the potential judgeship on the Western District
of Pennsylvania.
Not having a statement, with your permission I would like to in-
troduce my husband of 30-plus years.
Senator Coburn. Absolutely.
Ms. Fischer. Dr. Donald Fischer, who is with me here today.
Unfortunately, our three children, Erin, Lauren and Adam, could
not join us.
I would also like to tip my hat to my parents, Michael and Olga
Barry, who, because of health reasons, could not join us here today.
I would also like to acknowledge my partners and friends at
Pietragallo, Bosick & Gordon. My managing partner, Bill
Pietragallo, has been particularly helpful in this quest.
I would also like to thank all of the associates who are back on
the ranch doing the work that needs to be done today, and my legal
assistants and secretaries who worked hard on the applications.
I would also like to say a word in thanks to my six sisters, who
I will not all name, and my brother, who have supported me along
the way and e-mailed and cheered me on today. A special salute
to my godchild and niece, U.S. Army Captain Meghan Cumpston,
who is serving in Afghanistan.
[The biographical information of Nora Barry Fischer follows.]
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I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full Name (include any former names used.)
Nora Barry Fischer
Nora Mary Barry
2. Address: List current place of residence and office address(es).
Residence: Pittsburgh, Pennsylvania
Office: Pietragallo, Bosick & Gordon
3800 One Oxford Centre
Pittsburgh, PA 15219
3. Date and Place of Birth.
June 13, 1951
Homestead, Pennsylvania
4. Marital Status (include maiden name of wife, or husband’s name). List spouse’s
occupation, employer’s name and business address(cs).
Married to Donald R. Fischer, M.D., Physician Executive/Chief Medical Officer
Highmark
Fifth Avenue Place
Pittsburgh, PA 15222
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received and dates degrees were granted.
St. Mary’s College, Notre Dame, Indiana 46556 (1969-1973)
History/Humanistics Studies/BA, Magna Cum Laude (May, 1973)
L’Universite Catholique de L’Ouest Angers, France (1970-1971)
Certificate of French Studies
Notre Dame Law School (1973-1/76)
JD (January 15, 1976)
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6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
Pietragallo, Bosick & Gordon (2/1/92 - Present)
Equity Partner
Administrative Partner (1997 - 2000)
Practice Group Co-Chair - Defense Litigation Group (2003 to present)
Meyer, Darragh, Buckler, Bebenek & Eck (8/1/77 - 2/1/92)
Associate (1977 - 1980)
Jr. Partner (1980 - 1982)
Sr. Partner (1982 -1992)
Member of Firm Executive Committee and Compensation Committee
Case Manager and Practice Development Chair towards the end of my career at
Meyer Darragh.
Callaghan and Company, Legal Publishers - Editor (Spring 1976- Spring 1977)
Academy Trial Lawyers of Allegheny County
Member of Board of Directors and Officer (1997-2005)
Currently Past President, Ex Officio Board Member (2005-2006)
American Inns of Court, Pittsburgh Chapter
Officer and Ex Officio (2000-2005)
St. Mary’s College, Notre Dame, IN
Member of Alumnae Board (9/2006-2009)
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of sendee, rank or rate, serial number and type of
discharge received.
I have never served in the military.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
St. Mary’s College, Notre Dame, IN - Scholarship and Work Study
Allegheny County Bar Association Special Service Award (1993)
Allegheny County Bar Foundation Charter Fellow (1997)
Pittsburgh Athena Award Nominee (September 1999)
PBA Anne X. Alpem Award (May 2001)
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PBA Award for Service as Tri-Chair of the Pennsylvania Bar Association Health Care
Task Force (May 2004).
Martindale Hubbell “AV” Rating
Fellow in the American College of Trial Lawyers
Named Pennsylvania Super Lawyer and Top 50 Women Super Lawyers in Pennsylvania
(2004 and 2005)
Named Pennsylvania Super Lawyer (2006)
Recognition as one of Pennsylvania’s Top 50 Women in Business (February 2001).
9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
Illinois Bar Association (1976 to Present)
Allegheny County Bar Association (1977 to Present)
St. Thomas More Society Board Member (1978-1 980’s)
Medical Legal Committee Member, Vice Chair and Chair (1980’s)
Civil Litigation Section Member (1977 to Present) and Member of Executive
Council (1980’s)
Women in Law Committee (1980’s to 1 990’s)
Education Co-Chair
Board of Governors, three (3) year term (1990’s)
Allegheny County Bar Association Foundation Trustee (1997 to 2000)
Fellows Committee (1998 to Present)
Pennsylvania Bar Association
Civil Litigation Section Member and Executive Council
Commission on Women in the Profession
Program Chair; Co-Chair for two (2) terms (1997-1999)
Co-Chair of Subcommittee on Promotion of Women (2000-2002)
Delegate to PBA House of Delegates (two (2) terms) (1990’s)
Cochair, Task Force on Health Care (2004 to present)
Inns of Court - Pittsburgh Chapter
Master
Program Chair; Vice President; President (1999-2001)
Ex Officio Board Member (2002-Present)
American Bar Association
Section of Civil Litigation
Past Chair Professional Liability Subcommittee, Insurance Committee,
Civil Litigation Section (1999-2001)
Women Advocate Group - State Coordinator (2002-2003)
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West Virginia Bar Association Member (1990 to present)
Member of West Virginia Bar Association Mediation Panel
Academy of Trial Lawyers (1992 to present)
Board of Directors (1992-1994) and (1996-1998)
Service on various committees, including Essay Contest; Long Range
Planning; and Membership
Assistant Treasurer; Treasurer; Secretary; Vice-President; President Elect;
President; Ex Officio, Past President (1999 to present)
American College of Trial Lawyers
Fellow (2003)
State Committee Member (2003-present)
Defense Research Institute
Member, Insurance Coverage Committee (2004-present)
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
Organizations to which I belong and in which I am active in lobbying before public
bodies are:
Pennsylvania Bar Association
West Virginia Bar Association
Defense Research Institute
To my knowledge, all of these organizations have PACs.
Other organizations to which I belong, not previously listed are:
Insurance Women of Pittsburgh - now known as Insurance Professionals of Pittsburgh
Executive Women’s Council of Pittsburgh, PA
The Rivers Club, Pittsburgh, Pennsylvania
The Pittsburgh Golf Club, Pittsburgh, Pennsylvania
St. Mary’s Club of Pittsburgh
Notre Dame Club of Pittsburgh
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197
Sacred Heart Parish, Pittsburgh, Pennsylvania
The DePaul Institute Development Committee (2003 to present)
11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission of practice.
Illinois (1976)
Pennsylvania (1977)
West Virginia (1990)
United States District Court for the Northern District of Illinois (1977)
United States District Court for the Western District of Pennsylvania (1977)
United States District Court for the Southern District of West Virginia (1 990)
United States Court of Appeals for the Third Circuit (1981)
Supreme Court of the United States(1982)
United States District Court for the Middle District of Pennsylvania - Pro Hac Vice, only
(Late 1990’s)
United States District Court for the Northern District of West Virginia - Pro Hac Vice
and by admission (2002)
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they arc readily available to you,
please supply them.
McQuillen’s on Municipal Corporations, Callaghan and Company (1976 - 1977);
provided updates to text.
I have not made any speech on issues involving constitutional law or legal policy.
13, Health : What is the present state of your health? List the date of your last physical
examination.
I am in very good health. The date of my last physical examination was May 23, 2006.
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14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of an citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions.
I have never been a judge
16. Public Office : State (chronologically) any public office you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
None.
17. Legal Career :
a. Describe chronologically your law practice and experience after graduation
from law' school including:
1. whether you served as a clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
3. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
Callaghan and Company, Legal Publishers, formerly located at 6141
North Cicero, Chicago, IL 60646 - Legal Editor (Spring 1976 to Spring
1977)
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Note: Callaghan and Company was subsequently merged into Thompson
and ultimately into West Legal Publishers.
Meyer, Darragh, Buckler, Bebenek & Eck
U.S. Steel Tower, Suite 4850
600 Grant Street
Pittsburgh, PA 15219
Associate: 1977-1980
Jr. Partner: 1980-1982
Sr. Partner: 1982-1992
Pietragallo, Bosick & Gordon
One Oxford Centre, 38 lh Floor
301 Grant Street
Pittsburgh, PA 15219
Equity Partner: February 1992 to Present
b. 1. What has been the general character of your law practice, dividing it
into periods with date if its character has changed over the years?
At Callaghan and Company, I was charged with updating and editing
McQuillen’s on Municipal Corporations. I also worked on Fletcher’s
Corporation treatise and a number of practice and procedure texts directed
at Illinois practitioners.
Joining Meyer, Darragh, Buckler, Bebenek & Eck as an associate, I was
engaged in insurance defense practice including automobile liability;
municipal liability; and civil rights cases in both state and federal court. I
handled arbitration cases; non-jury trials and my initial civil jury trials in
both state and federal court. I started our firm’s law clerk program and
served on the Library Committee. I also served as a Master for the
Allegheny County Court of Common Pleas in the pro bono divorce
program.
In this time period, I had a number of cases involving alleged Section
1983 civil rights violations against various municipalities and municipal
officials. Many of these cases were brought by prisoners or other pro se
litigants. My practice also included malpractice and insurance coverage
trials and appeals.
Between 1980 and 1992, as a partner at Meyer Darragh, I continued my
work in the insurance defense arena. For approximately ten (10) years,
my practice was 50% medical malpractice defense and 50% toxic tort. I
practiced throughout western Pennsylvania and West Virginia. As a
medical malpractice defense attorney, I represented both hospitals and
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physicians. On occasion, I also handled employment and insurance
coverage disputes.
At the same time, I became more active in the administration of Meyer
Darragh, moving on to the firm Executive Committee and ultimately to its
Compensation Committee. In my last years at Meyer Darragh, in addition
to those duties, I also served as Case Manager and Practice Development
Chair.
Moving to Pietragallo, Bosick & Gordon in February 1992 as an equity
partner, I concentrated on insurance coverage disputes, product liability
and toxic tort claims and began to develop a mediation practice. For a
particular major manufacturer and supplier, I have handled a variety of
toxic tort claims including claims emanating from asbestos, mercury, lead,
and breast implant exposures.
At Pietragallo, Bosick & Gordon, I have served as Administrative Partner
handling recruitment, associate and staff training and related matters. At
the present time, I serve as Co-Chair of the Defense Litigation Practice
Group, our largest practice group.
b. 2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
Clients whom I have represented have included a number of major
manufacturers, suppliers and distributors in the product liability and toxic
tort fields; numerous insurance companies in coverage litigation; various
municipalities including Allegheny County, the Borough of Homestead,
among others, in 1983 civil rights litigation and employment litigation;
various individuals whom I represented through insurance companies in
negligence cases; physicians and hospitals in medical liability cases and
on occasion, Plaintiffs in personal injury litigation, as well as policy
holder entities in coverage disputes.
c. 1. Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
Frequently.
2. What percentage of these appearances was in:
00
federal courts:
20%
(b)
state courts of record:
75%
<c)
other courts.
5%
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3. What percentage of your litigation was:
(a) Civil: 100%
(b) criminal.
4. State the number of case in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
Approximately 35 as sole counsel; approximately 20 as associate counsel
or second chair.
5. What percentage of these trials was:
a. Jury: 80%
b. Non-Jury: 20%
18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigation; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
1. Mason v. Western Pennsylvania Hospital . 286 Pa. Super. 354, 428 A.2d 1366;
499 Pa. 484, 453 A.2d 974 (1982)
As an associate at Meyer Darragh, I was assigned Preliminary Objections in
regard to the above-captioned case. We challenged the nature and scope of
damages in this alleged wrongful life but healthy child case. Those Preliminary
Objections took me to the Superior Court twice, once before a panel and once en
banc and then to the Pennsylvania Supreme Court. Thereafter, the case was tried
in the Court of Common Pleas of Allegheny County before Judge Silvestri
Silvestri. I acted as trial counsel for the Hospital. The trial resulted in a defense
verdict for both the Doctor and Hospital. An appeal was taken. Consequently,
Judge Silvestri Silvestri wrote an opinion concerning the standard for expert
testimony under Pennsylvania law which was published in the Pittsburgh Legal
Journal, The case went back on appeal with Dr. Blockstein, only, the Hospital
having been dismissed.
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Counsel for the Masons were Byrd Brown, now deceased, the Honorable Doris
Smith Ribner, now of the Pennsylvania Commonwealth Court (215-560-3699)
and the Honorable Gary Lancaster now of the District Court for the Western
District of Pennsylvania (412-208-7400). Although my former partner, Don
Bebenek, began the case with me, I proceeded to handle all of the appellate briefs
and arguments as well as to try the case. Richard Dorfzaun of Dickie, McCamey
& Chilcote, Two PPG Place, Suite 400, Pittsburgh, Pennsylvania 15222
(telephone number 412-392-5201) acted as counsel to co-Defendant, Dr.
Blockstein throughout the litigation.
2. Michael Derzack and Karen Derzack v. County of Allegheny, et al„ Civil Action
No. 94-0943 in the United States District Court for the Western District of
Pennsylvania, 1 73 FRD 400, aff'd, 1 1 8 F3d. 1 575 (1997). Karen and Michael
Derzack sued Allegheny County and numerous related Defendants charging civil
rights violations in the handling of the placement of Baby Byron. Our firm
represented the County of Allegheny and the Commissioners in their official
capacity.
Working with my then associates, Mark Haak and Jeanette Ho, as well as one of
our Summer Law Clerks who happened to be a CPA, during the course of the
investigation and discovery of this case, we determined that the Derzacks’ tax and
wage documents were dishonest. Based on that information, and the fact that the
Plaintiffs had submitted a written demand per Court Order to the Magistrate
Judge, Robert Mitchell, I determined that we should defend the case as a fraud on
the Court. Hence, we put on testimony and related evidence, then moved for
judgment which was upheld by Magistrate Judge Mitchell and then by the
Honorable Donald Lee, in a lengthy opinion which was affirmed on appeal.
Counsel for the Plaintiffs were Art Bloom now of Arthur Bloom & Associates,
Law & Finance Building, 429 Fourth Avenue, Pittsburgh, Pennsylvania 15219
(412-281-1899) and Alexander H. Lindsay, Jr. of the then law firm Lindsay,
Jackson & Martin, 128 S. Main Street, Butler, Pennsylvania 16001 (724-282-
6600). Co-Defendants were represented by David James Singley formerly of
Israel & Wood and now of Thorp Reed & Armstrong, 14 lh Floor, 301 Grant
Street, Pittsburgh, Pennsylvania 15219 (412-394-7711); Timothy W. Pawol, Ira
Weiss and John A. Mulroy then of the Allegheny County Law Department, 711
Bingham Street, Pittsburgh, Pennsylvania 15203 (412-350-1 120); (Mr. Weiss is
now practicing as the principal in the Law Offices of Ira Weiss, Ft. Pitt Commons
Building, 445 Fort Pitt Boulevard, Suite 503, Pittsburgh, Pennsylvania 15219
(412-391-9890). Mr. Mulroy can be reached at 412-606-1002)). Peter J. Taylor
and Arthur J. Murphy, Jr. of Arthur J. Murphy & Associates, Suite 100, 326 3 rd
Avenue, Pittsburgh, Pennsylvania 15222 (412-255-0200); Elizabeth A. Malloy
and Joseph F. Quinn of Klett Rooney, 40 th Floor, One Oxford Centre, Pittsburgh,
Pennsylvania 15219(412-392-2000).
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3. Mabel L. Ford. Administratrix of the Estate of Shawn T.L. Ford. Deceased v.
Althea Denise Johnson, et al. Civil Action number 94-2201 in the United States
District Court for the Western District of Pennsylvania, 899 F. Supp. 227, *; 1995
U.S. Dist LEXIS 19268. This case arose out of a custody dispute. Sadly, the
father beat the child to death in a motel room. The mother filed an action against
the county officials and police officers. She raised “special relationship” and
“state created” danger theories of liability against the county officials. She also
alleged a violation of the child’s Eighth and Fourteenth Amendment rights. On a
Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the trial
court judge dismissed the “special relationship” theory of liability. We
represented the Allegheny County Commissioners who were in office at the time.
The dismissal stood on appeal for the Third Circuit. The matter was heard by The
Honorable Donetta Ambrose, currently Chief Judge of the Federal Court, Western
Pennsylvania District,
Mabel Ford was represented by Alan Cantor and Max A. Levine whose office is
located at Levine & Spatz, 900 Allegheny Building, 429 Forbes Avenue,
Pittsburgh, Pennsylvania 15219 (412-232-0315). Co-defense counsel were
numerous including Eric N. Anderson of Meyer, Darragh, Buckler, Bebenek &
Eck, U.S. Steel Tower, 600 Grant Street, Suite 4850, Pittsburgh, Pennsylvania
15219, 412-261-6600; Howard J. Schulberg, presently of Goehring Rutter &
Boehm, Frick Building, 437 Grant Street, Suite 1424, Pittsburgh, Pennsylvania
15219, 412-281-0587, Scott T. Redman, Redman & Pongrace, Two Chatham
Center, 1 12 Washington Place, Suite 610, Pittsburgh, PA 15219, 412-263-3360
and John C. Conti of Dickie McCamey & Chilcote P.C., Two PPG Place, Suite
400, Pittsburgh Pennsylvania 15222-5402, 412-392-5425.
4. Liebert. et al. v. Chatwins Group. Inc., v, W. I. Clarke Company . GD92-20602 in
The Court of Common Pleas of Allegheny County. The Lieberts brought suit
against Chatwins Group and a number of other entities in regard to a severe head
injury sustained by Mr. Liebert at the former Jones & Laughlin Steel facility
located in Hazlewood. Represented by Phil Ignelzi of Ogg, Jones, Cordes &
Ignelzi, 245 Fort Pitt Boulevard, Pittsburgh, Pennsylvania 15222 (412-471-
8500), the Lieberts charged the Defendants with negligence and maintained that
their individual products were defective under Pennsylvania product liability law.
I represented Dixon Valve, a supplier of valves and related equipment used in
hoses. After extensive discovery, and upwards of thirty depositions, as a
component part manufacturer, we moved for summary judgment. Summary
judgment was granted by Judge Wettick. Co-Defendants challenged same. On
re-hearing, it was granted again. On appeal, the Superior Court affirmed. I made
all of the arguments.
The case proceeded to jury selection and arguments on Motions in Limine. At the
commencement of the trial, the case was settled for a significant seven figure
sum.
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Chatwins Group was represented by Herbert Bennett Conner, now of Buchanan
Ingersoll, 20 <h Floor, One Oxford Centre, Pittsburgh, Pennsylvania 15219 (412-
562-8800). Combustion Engineering was represented by Ben McAuley, formerly
of the Wayman Irvin & McAuley firm and now retired. Terry Bashline, formerly
of Bagainski and Bashline and now Bashline & Hutton, Suite 1650, One PPG
Place, Pittsburgh, Pennsylvania 15222 (412-434-0201), David Abrams of
Abrams & Mazer, Alston Mall, 2526 Monroeville Boulevard, Suite 207,
Monroeville, Pennsylvania 15146(412-829-7733), Sean Patrick Harmon of Gorr
Moser Dell & Loughney, Frick Building, 437 Grant Street, Suite 1300, Pittsburgh,
Pennsylvania 15219 (412-471-1180) and Barron P. McCune, formerly of Suite
100, 90 W. Chestnut Street, Washington, Pennsylvania 15301 (724-225-2400)
represented the remaining co-Defendants. Throughout the pre-trial stage of the
case, the Honorable Stanton Wettick presided.
5. Lewis, et al. v. Wendy’s of Greater Pittsburgh, et al.. GD 96-001371; Pritts. et al.
v. Wendy’s of Greater Pittsburgh, et al- GD 97-003173 in the Court of Common
Pleas of Allegheny County. These were the first two (2) significant E.coli cases
brought in Allegheny County. In each of these cases, small children claimed
devastating injury due to their ingestion of food products allegedly contaminated
by E-coli. Representing the franchise operator and by way of indemnification,
Wendy’s as the national organization, I was required to carefully investigate the
potential mode of transmission; the practices, policies and procedures of the
franchise versus the national; and to consider and evaluate the medical evidence
in the cases. In the course of the handling of these cases, a significant dispute
arose concerning discovery and contact of individuals employed by various of the
restaurants. This discovery dispute resulted in an Opinion by the Honorable
Stanton Wettick concerning the discoverability of non-management employees at
an entity such as a fast food restaurant.
Neil R. Rosen of Rosen Louik & Perry, Suite 200, 437 Grant Street, Pittsburgh,
Pennsylvania 15219 (412-281-4200) represented Mr. & Mrs. Lewis and John
Gismondi of Gismondi & Associates, Grant Building, 310 Grant Street, Suite 700,
Pittsburgh, PA 15219 (412-281-2200) represented Mr. & Mrs. Pritts.
6. Nicklow, et ux. v. Western Pennsylvania Hospital, et al.. GD 98-014512 in The
Court of Common Pleas of Allegheny County. This case was a medical
malpractice claim brought against West Penn Hospital and three (3) adult
cardiologists. The case tried for two and one-half (214) weeks before the
Honorable Paul F. Lutty in May 2000. The case resulted in a $1,000,000.00
verdict against West Penn Hospital and one of the Defendant physicians. My
client, an individual physician, was exonerated. The case made local and national
news and was reported in various radiology and cardiology journals given the
circumstances of the claim. It was settled by West Penn Hospital and the liable
Defendant Doctor on appeal. No payment was made by my client and/or his
insurer.
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Plaintiffs’ counsel was Alan Perer of Swensen & Perer, Two PNC Plaza, Suite
2710, Pittsburgh, PA 15222(412-281-1970). Co-defense counsel included Lynn
E. Bell of Davies McFarland & Carroll, One Gateway Center, 420 Ft. Duquesne
Boulevard, 10 th Floor, Pittsburgh, Pennsylvania 15222 (412-281-0737) for two
(2) of the physicians and David Johnson of Thomson Rhodes & Cowie, Two
Chatham Center, 1 12 Washington Place, 10 th Floor, Pittsburgh, Pennsylvania
15219 (412-316-8662) for West Penn Hospital.
7. Bashir Yousufzai. M.D. v. Darrvl R. Slimak. McOuaide. Blasko Schwartz
Flemming & Faulkner. Inc.. Meyer Derragh Buckler Bebenek & Eck, and PMSLIC
Civil Docket #04-CV-882 - U.S. District Court of Western District of PA (2005).
This case entailed the defense of a $9 million bad faith lawsuit brought in federal
district court against a professional liability carrier which involved allegations of
claim mishandling by the insurance adjuster and alleged legal malpractice by
assigned defense counsel. The insured also asserted that defense counsel’s success
in securing dismissal of all claims against the insured physician except a single, non-
covered assault and battery charge constituted legal malpractice by defense counsel
and bad faith on the part of the insurer. Novel argumentation and effective brief
writing in a Motion to Dismiss filed early in the case resulted in a settlement
extremely favorable to the insurance carrier. The presiding judge was The
Honorable David Cercone sitting in the Western District of Pennsylvania.
Plaintiff’s counsel was Robert Woomer, WOOMER & FRIDAY, LLP, 3220 West
Liberty Avenue, Suite 200, Pittsburgh, Pennsylvania 15216-2320 (412-563-7980).
Co-defense counsel was Dennis Watson formerly of Grogan Graffam Grogan
Graffam, P.C., Four Gateway Center, 12 th Floor, 444 Liberty Avenue, Pittsburgh,
Pennsylvania 15222 and now of Marshall, Dennehey, Warner, Coleman &
Goggin, Pittsburgh, Pennsylvania, 15219 (412-803-1181) and James Schadel of
Weinheimer Schadel & Haber, Law & Finance Building, Suite 602, 429 4
Avenue, Pittsburgh, Pennsylvania 15219 (412-765-3399).
We represented the interests of Pennsylvania Medical Society Liability Insurance
Company and its adjusters.
8. Rolls Technology. Inc, v. The Hartford Steam Boiler Inspection and Insurance
Company and Factory Mutual Insurance Company , in the District Court for the
Western District of Pennsylvania, Civil Docket No.: 01-0904. I represented a
policy holder manufacturer which had sustained significant damage to its facility
due to an onsite explosion. Following the filing of a declaratory judgment action
in state court, the matter was removed to federal district court, the Honorable
William Standish presiding. The matter was referred for mediation resulting in a
very favorable settlement in favor of our client.
Counsel for Hartford was William James Rogers of Thomson Rhodes & Cowie,
P.C., 1010 Two Chatham Centre, Pittsburgh, Pennsylvania 15219 (412-232-3400)
and counsel for Factory Mutual was Donald L. Best of DiBella & Geer, P.C., 322
13
206
Boulevard of the Allies, 3 rd Floor, Pittsburgh, Pennsylvania 15222 (412-261-
3208).
9, Grace Goodnite. as the Personal Representative of the Estate of Donald Goodnite.
Deceased v. 20 111 Century Glove, et al. Civil Action Number 03-C-9600 in the
Circuit Court of Kanawha County, West Virginia, decided on summary judgment in
favor of the Defendant manufacturer which we represented (May, 2005). The
Decision is noteworthy in that it upheld a release entered in a lesser disease injury
claim, thereby dismissing the more significant asbestos related cancer claim. The
presiding judge was The Honorable Ronald Wilson, appointed to the Mass Tort
Panel by the West Virginia Supreme Court of Appeals. Plaintiffs counsel was
Geraldine Guerin of the James Humphreys & Associates firm located at United
Center, Suite 800, 500 Virginia Street, East, Charleston, West Virginia 25301
(304-347-5050)
1 0. West Virginia Mass Trial . In the Circuit Court of Kanawha County, West Virginia.
This was the third statewide consolidation of asbestos-related claims in Charleston,
West Virginia and involved over 8,000 Plaintiffs and in excess of 200 Defendants.
Appointed by the West Virginia Supreme Court of Appeals Judges Arthur Recht and
Booker T. Stephens presided over this massive trial which consolidated strict
liability, negligence and premises claims against numerous defendants including
some of the biggest manufacturers in the United States. Representative plaintiffs
were chosen based on disease type to stand for the plaintiff group. Discovery of
work sites and plaintiffs themselves was exhaustive. Periodically, the Court hosted
motions practice leading up to the trial date. Given the magnitude of the case, the
potential for the application of offensive collateral estoppel on product defect issues
and the costs of going to trial in such a forum, my client chose to settle. As local
counsel of a large manufacturing defendant working with national counsel we
negotiated settlement of pending and future cases. (September, 2002).
Plaintiffs’ counsel included Ted Goldberg, Dave Chervenick and Bruce Mattock of
Goldberg, Persky & White, P.C., 1030 Fifth Avenue, Pittsburgh, Pennsylvania
15219 (412-471-3980); Jackie Rion formerly of Ness Motley and now affiliated
with Richardson Patrick Westbrook& Brickman, LLC, P.O. Box 879, Charleston,
South Carolina 29402 (1-888-293-6883) and Ron Motley and Anne Kearse of
Motley Rice, 28 Bridgeside Boulevard, P.O. Box 1792, Mt. Pleasant, South
Carolina 29465 (843-216-9140). Co-counsel for General Electric Company was
Maja Eaton of Sidley, Austin, Brown & Wood, One S. Dearborn Street, Chicago,
IL 60603 (312-853-7123). More than 100 defense counsel throughout Western
Pennsylvania and West Virginia and beyond were involved. They included Eric
Falk of Davies McFarland and Carroll, 10th Floor, One Gateway Center,
Pittsburgh, Pennsylvania 15222 (412-281-0737) and Connie Silvaggio, Willman
& Arnold, 705 McKnight Park Drive, Pittsburgh, Pennsylvania 15237-6356 (412-
366-3333); Michael Victorson, Jackson & Kelly P.O. Box 553, Charleston, WV
25322-0553 (304-340-1079); Leo Daly, Grogan Graffam, P.C., Four Gateway
Center, 12 th Floor, Pittsburgh, Pennsylvania 15222 (412-553-6300); Joni
14
207
Mangino and Alex Bickett of Zimmer Kunz, PLLC, Suite 3300 U.S. Steel Tower,
Pittsburgh, PA 15219, (412-281-8000), Beth Rauer, formerly of Spillman
Thomas now of Robinson & McElwee, PLLC, P.O. Box 1791, Charleston, WV
25326 (304-347-8320); Corey Zurbuch, Spilman Thomas & Battle, 300 Kanawha
Boulevard East, Charleston, West Virginia 25301 (304-340-3800); among others.
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
In addition to building a practice and handling literally hundreds of cases over the past 30
years, I would state that the most significant legal activities which I have pursued have
included my activity as an expert witness and consultant as well as my work as a
mediator and arbitrator. As an expert witness and consultant, I have provided opinion
evidence in a reinsurance matter emanating out of an insurance dispute centered on
coverage for asbestos related claims. More recently, I acted as a consultant and expert in
regard to the duties between a primary carrier and its excess carrier, including the duty to
provide proper defense representation to the insured. In this instance, I was retained
following trial of an underlying personal injury case which resulted in a significant
millions of dollar verdict. I was required to review and analyze not only the insurance
coverage, but the claims handling activity as well as the legal files of underlying defense
and appeal counsel. The matter resolved following submission of expert reports prior to
trial in May 2005.
Following training by United States Arbitration and Mediation, I was fortunate to be
selected to act as a Daikon Shield referee through the Duke University Private
Adjudication Center. As such, I heard cases in both Pittsburgh and in Harrisburg, taking
testimony and ultimately handing down decisions in approximately 12-15 cases. Further,
I have acted as a mediator and arbitrator, either privately, by court appointment, or
through referral by the West Virginia Bar Association. I have tried jury and non jury
trials as a Special Master in the Court of Common Pleas of Allegheny County. I have
handled cases on a pro bono basis as well as a paid basis. These cases have centered on
personal injury, insurance coverage, employment, and business claims as well as a heated
property dispute which took two days of mediation in Marshall County, West Virginia. I
have obtained great satisfaction in bringing matters to a close through arbitration,
mediation and my negotiation skills.
In addition, over the years, I have worked with both the University of Pittsburgh School
of Law School and Duquesne University in their NITA trial programs. I have
volunteered to act as a judge in the Honorable Amy Reynolds Hay Trial Moot Court
Class at the University of Pittsburgh. More recently, I worked with my partner William
Pietragallo as well others in putting together a course outline and materials for one of the
courses taught as part of the John Gismondi Trial Advocacy Institute at the University of
Pittsburgh School of Law.
15
208
In the local Bar I had the privilege to chair an effort to recognize the first 100 women
who practiced law here in Pittsburgh. Not only did we write their history, but we
celebrated them at the largest dinner every hosted by the Bar Association. For this
activity, I received special recognition by the local Bar and was an invited speaker at the
ABA national meeting the following year on a program directed at increasing female
participation in the ABA.
I would also say it’s been my pleasure over the past thirty (30) years to work with law
students and younger attorneys first, at Meyer Darragh through its law clerk program
which I established, and later at Pietragallo, Bosick & Gordon and through the Bar
Association. I have had the opportunity to mentor, both men and women in the practice
of law and in the development of their legal careers. I am proud to say that a number of
these individuals have gone on to a variety of careers in the law and in business. One of
my early mentees now sits as a Superior Court Judge in the Commonwealth of
Pennsylvania. Several act as in house counsel. Many have gone on to partnerships in my
former firm, my current firm and in the firms across the City. Furthermore, as one of the
first women to make partner in a major Pittsburgh law firm, I had the opportunity to help
shape policies at my then and current firm on maternity leave and part time work, both of
which help to encourage and maintain women in the profession.
16
209
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensation in the future for any
financial or business interest.
Upon retirement from Pietragallo, Bosick & Gordon, I would be entitled to
reimbursement of my capital contribution. If I should be selected to become a Federal
District Court Judge, then and in that event, said monies would be paid to me. At that
point, I would have no financial interest in Pietragallo, Bosick & Gordon. I have no
deferred income arrangements, stock, options, uncompleted contracts and/or any other
future benefits.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
If I should be confirmed, I would carefully follow the Code of Conduct for United States
Judges and all applicable statutes, policies and procedures. I would follow established
procedures to review the parties in each case as well as counsel to determine the potential
for any conflict. Potential conflicts would include cases wherein members of my current
firm are counsel of record; cases involving current clients of mine; and cases involving
entities with which my spouse or family members are affiliated or represent.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
No,
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prepare to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached. Financial Disclosure Report
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached Net Worth Statement
17
210
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
Over time, I have acted in a fundraising role for various judicial candidates, including my
current partner, Oayle Godfrey, the Honorable Kate Ford Elliott, President Judge of the
Superior Court, and Roger Wise, a recent candidate for the Court of Common Pleas of
Allegheny County. In each instance, I have solicited donations, particularly from
lawyers, family and friends. My role has been limited to fundraising in large measure. In
addition, I have made political contributions to various candidates for public office.
Recently, I was asked to serve on a host committee for a fundraiser involving Senator
Santorum by one of my former law clerks, now an attorney at Eckert Seamans. My
husband and I contributed to that event and I sought out additional contributions from
colleagues, business contacts and friends. I was out of the Country at the time of the
fundraiser and did not attend. Nor did my husband attend.
18
211
AO-ie
Rev: 1/2004
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Etbks
in Government Act of 1978
(S VS C-app. |§ 101-111)
l Person Reporting { Last name, F list name. Middle initial)
Fischer, Nora B
2 Court or Organization
District Court, Western PA
3. Date of Report
7/26/2006
4 Title (Article III Judges indicate active or senior status:
magistrate judges indicate foil- or part-time)
Federal District Court Judge Nominee
5 RcportType (check appropriate type)
(•) Nomination Date 7/13/06
O Initial Q Annual Q Final
6 Reporting Period
1/1/2005
7 Chambers or Office Address
3 800 One Oxford Centre
Pittsburgh, PA 15219
8 On the basis of the information contained in this Report and any
modifications pertaining thereto, it is. in my opinion in compliance
with applicable laws and regulations
Reviewing Officer ' Bate
• _ L -
IMPORTANT NOTES: The instructions accompanying this form must be followed Complete all parts, checking the NONE box for each part
‘ 0 ^ where you have no reportable ^formation Sign on last page
I. POSITIONS, (Reporting individual only: see pp 9-13 of filing instructions)
CD NONE • (No reportable positions )
POSITION
NAME OF OROANIZATION/ENIIIY
1 . Equity Partner
Pietragalio Bosick, and Gordon
Immediate Past President
Academy of Trial Lawyers of Allegheny County
II. AGREEMENTS, (Reporting individual only; see pp. 14-16 of filing instructions)
0 NONE - (No reportable agreements )
1992
MIE
Partnership agreement; Pietragalio, Bosick and Gordon (PB&G)
212
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Fischer, Nora B
7/26/2006
HI. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp 17-24 of filing instructions)
A- Filer’s Non-Investment Income
O NONE - (Mo reportable non -investment income )
DATE SOURCE AND TYPE GROSS INCOME
(years, not spouse’s)
I
2004
Pietragallo, Bosick and Gordon
521,740
2
2005
Pietragailo, Bosick and Gordon
686,158
3
2006
Pietragallo, Bosick and Gordon
116,700
B, Spouse's Non-Investment Income - (If you were married during any portion of the reporting year, please complete this section Dollar amount
not required except for honoraria )
O NONE - (No reportable non-investment income )
BATE SOURCE AND TYPE
1 2004 Highmark Blue Cross Blue Shield, salary
i 2005 Highmark Blue Cross Blue Shield, salary
I 2006 Highmadc Blue Cross Blue Shield, salary
! 2004 University of Pittsburgh Physicians, part time salary
2005 University of Pittsburgh Physicians, part time salary
2006 University of Pittsburgh Physicians, part time salary
IV. REIMBURSEMENTS - transportation lodging. food, entertainment
(Includes ihosc to spouse and dependent children See pp 25-27 of instructions )
□ NONE - (No such reportable reimbursements )
SOURC E DESCRIPTION
EXEMPT
213
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Fischer, Nora B
7/26/2006
V, GIFTS. {Includes those to spouse and dependent children Seepp 28-31 of instructions )
D NONE - (No such reportable gifts )
SOURCE DESCRIPTION VALUE
1 EXEMPT
"VX. LIABILITIES, (Includes those of spouse and dependent children See pp 32-34 of instructions )
0 NONE - (No reportable liabilities )
1
CREDITOR
VALUE CODE
214
FINANCIAL DISCLOSURE REPORT
Page 1 of 1
VH. INVESTMENTS and TRUSTS »
Name of Person Reporting
Date of Report
Fischer, Nora 8
7/26/2006
value Inutscadons {includes those of tbe spouse and dependent children See pp 34-57 of filing instructions }
A.
Description of Assets
(including trust assets)
BS
C.
Gross value at end of
reporting period
D
Transactions during reporting period
0)
Amount
Cadet
(A-H)
(2)
type (eg
div. rant or
int)
(1)
Value
Code 2
(«*>
(2)
Value
Method
Code 3
(Q-W)
(1)
type (eg
buy, sell
merger,
redemption)
If not exempt from disclosure
Place (X) after each asset exempt
from prior disclosure
(2)
Date:
Month -
Day
O)
Value
Code 2
(J-P)
«)
Gain
Code 1
(A-H)
(3)
Identity of
buyer&eller
(if private
transaction)
f~] NONE (No reportable income assets, or transactions)
I Mellon Bank savings and checking accounts
A
Interest
K
■
m
a
PNC Bank checking account
A
Interest
J
I
3 American Funds qualified investment plan (PB&G)
E
Dividend
PI
r
a
a
B
Mellon Bank IRA
A
Interest
J
i
a
i
a
a
Pietragallo, BosicR and Gordon capital investment
None
L
BB
a
a
TIAA-CREF qualified investment account (spouse)
m
Dividend
O
B
^ NHS IRA (spouse)
E
Dividend
m
■
■a
g UPMC Health System retirement plan (spouse)
A
Dividend
i
I
a
Highmark qualified investment plan (spouse)
D
Dividend
H
■
10
Highmark deferred compensation plan (spouse)
C
Dividend
L
I
11
NFS Joint Investment Account
E
Dividend
N
■
a
12
Mass Mutual Life Insurance Policy cash value (NBF)
A
Interest
K
i a
13
Mass Mutual Life Insurance Policy cash value
(spouse)
A
Interest
J
r
1 Income/Gain Codes:
(See Columns B] and D4)
2 Value Codes:
■ $1 000 or less
550,00 1 -1 1 00.000
■$15„000 or less
(See Columns Cl and 03) ;N “S25G 000-5500.000
Pi « $25,000 001-S50.000.000
3 Value Method Codes Q -Appraisal
(See Column C2) U * Book Value
B =$1,001-52 500
G =5100.001-$] .000 000
K =515.001-530 000
O rS500-001-Sl.000.000
R = Cost (Real Estate Only)
V = Other
C =52 501-55.000 D =55,001-515.000
HI »$ 1000,001-55.000.000 H2 -More Mm $5 000.000
t. “ 550.001 -SI 00 .000 M =$100001-5250,000
PI -Sl.000.001-S5.000.000 P2 =$5,000.00.1-525.000.000
P4 = SMore tlmn S50 .000.000
S = Assessment I <= Cash/Market
W -Estimated
215
Vm. ADDITIONAL INFORMATION OR EXPLANATIONS t*~***t*«}
DC CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and die acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et. seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY
BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
216
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Securities
I. Pietragallo, Bosick and Gordon qualified accounts
American Funds Growth Fund
American Funds Washington Mutual
Amer Funds Smallcap World Fund
Amer Funds Fundamental Investors
American Balanced Fund
PB&G funds total
n. IRA's
Mellon Bank CD
NBF Mellon CD
NBF Allegheny Investments
American AMCAP Fund (AMPFX) $ 7,355
American Europacific Growth (AEGFX) $ 1 5,004
Dodge & Cox Stock (DODGX) $ 8,956
Federated Kaufman Small Cap Fund CL A $14,621
Eaton Vance Adviser's Senior (EAFRX) $ 1 0,974
FPA New Income (FPNIX) $ 1,043
T Rowe Price International Bond (RPIBX) $ 2,023
Prime Fund Cap Reserves (FPRXX) $933
TOTAL Allegheny NFS IRA:
$408,183.15
$441,931.95
$242,442.81
$104,130.96
$ 32,274.85
$1,228,963.72
$ 5,016.00
$ 4,182.00
$60,909.16
TOTAL NBF IRAs
$ 70,107.16
ni, PB&G partnership interest
$ 60,000
IV. (DRF) Securities
A. University of Pittsburgh qualified accounts
TIAA B 188005-9
$260,401
CREF Q 188005-6; cref stock
$487,479
CREFQ 188005-6; global
$2,093
SRA TIAA K215836-4
$14,474
SRA CREF stock J2 15836-6
$31,139
SRA CREF global J2 15836-6
$1,479
TIAA 2860970-9
$16,041
CREF 1860970-1; cref stock
$31,130
CREF 1860970-1; global
$19,574
TIAA 28653 12-9
$10,697
CREF 1865312-9; cref stock
$20,757
CREF 1 8653 12-9;global
$13,051
CREF 41 14099-7;global
$1,090
CREF 4159335-1;
$ 254
TIAA-CREF total:
$909,656.91
217
B. NHSLLCIRA
Federated US Govt Sec (FIGTX) $24,258
PIMCO Low Duration (PTLAX) $25,361
Federated FD US Govt Sec (FUSGX) $ 1 2,395
PIMCO total Return (PTTAX) $ 13,144
PIMCO Foreign Bond (PFOAX) $ 5,634
Capital World Bond (WBFFX) $6,860
Davis New York Venture (NYVTX) $37,627
Enterprise Growth (ENGRX) $34,942
Artisan Intemat'l (ARTIX) $40,882
SIT Small Cap Growth (SSMGX) $27, 1 99
Templeton Foreign (TEMFX) $39,239
MFS International New Disc CL A $39,324
First Eagle Sogen Global (SGENX) $4 1 ,998
Royce Microcap Investment Class $47,539
Davis Real Estate (RPFRX) $ 1 7,954
Wells Family Real Estate (WSPAX) $16,367
Prime Fund (FPRXX) $1,117
NHS total:
C. UPMCHS retirement program
Savings Plan (Artisan Mid Cap) $5,839
Cash Balance Plan $4,629
UPMCHS total:
D. Highmark Investment Plan
AET Small Cap Equity Index $27,058
Large Cap Equity Fund (Y) $3 1 ,056
UBS Inti Equity Fund $33,479
PIMCO Total Return Fund (Admin) $24,184
Highmark Inv Plan
E. Highmark Deferred Comp Plan
Federated Quality Bond II $12,476.45
Oppenheimer Global Securities $ 1 3,002.46
GVIT Mid Cap Index $17,147.90
Salomon High Yield $8,5 1 1 .48
T Rowe Price Equity Income II $21 ,444. 1 3
Templeton VIPT Foreign Securities $13,280.33
Highmark Def Comp
V. NBF and DRF Jointly Held Securities
NHS funds
Federated Kaufmann (KAUFX) $23,345
Harbor Capital Appreciation (HACAX) $21 ,464
Royce Pennsyl Mutual Invst (PENNX) $22,862
$431,839.23
$10,468.03
$115,776.81
$85,862.75
2
218
T Rowe Price Inti Disc (PRIDX) $16,039
T Rowe Price Real Est Fund (TRREX) $13,950
Thornburg Inv Income Builder (TIBAX) $33,729
Thornburg Inter Muni Class A (THIMX) $14,898
Thornburg Ltd Term US Govt (LTUSX) $ 14,624
Thornburg Value Class A (TV AFX) $24,20 1
Tweedy Browne Global Value (TBGVX) $ 15,628
William Blair Int'l Growth Class (WBIGX) $ 1 5,637
Dodge & Cox Income (DODIX) $4,180
PIMCO Foreign Inst SHS (PFORX) $8, 1 72
Thornburg Ltd Term Income (THIFX) $ 1 0,944
Prime Fund Capital Reserves (FPRXX) $20,3 12
Dodge & Cox Inti Stock Fund (DODFX) $16,426
total NFS accounts:
$ 276,411.96
Total Securities (qualified and unqualified)
$3,189,086.56
Real Estate Owned
Personal residence est. market value
Vacation home est. market value
Timeshare purchase price
Total Real Estate
$950,000.00
$150,000.00
$ 15.700.00
$ 1,115,700.00
Real Estate Mortgages
Personal residence
Home equity loan
Vacation home
Total Mortgage liability
$286,000.00
$135,300.00
$ 25,100.00
$ 446,400.00
Assets pledged (current balance owed over multiple year campaigns)
St. Mary's College development campaign $1 5,000.00
Sacred Heart Parish $ 1,000.00
American Bar Assn Foundation $ 3,500.00
DePaul School for Hearing and Speech $ 2,500.00
Total Assets pledged $ 22,000.00
3
219
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association’s Code of
Professional Responsibility calls for “every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in the serving
of the disadvantaged.” Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.
As an associate at Meyer, Darragh, Buckler, Bebenek & Eck, I served on the then
Indigent Divorce Panel. As such, I reviewed cases and then heard testimony, making
recommendations concerning the granting of divorces. In most instances, abandonment
had occurred. Over a three-year period, I estimate I served as a Master in at least two-
dozen of these cases. Later in my legal career at Meyer Darragh and in my career at
Pietragallo Bosick & Gordon, I have routinely accepted pro bono assignments to mediate,
arbitrate and/or establish a settlement value for cases pending in both the District Court
for the Western District of Pennsylvania situated in Pittsburgh, Pennsylvania and through
the West Virginia Bar Association. On average, I have accepted 2-3 such assignments
per year. Depending upon the nature and extent of the case, mediation could run from a
couple of hours to as many as two days, as occurred in a property dispute I mediated in
Marshall County, West Virginia.
Concurrently, as a partner at Pietragallo, Bosick & Gordon, under the leadership of
Christine Miller and then Lenora Randall, I served as a telephone contact person for the
Legal Resources for Women, based at the YWCA. As such, I volunteered as much as
once per week, over the lunch hour or late in the day to answer inquiries, primarily
concerning family law issues. If the issue presented was beyond my limited experience
in family law, I then made referrals to appropriate family lawyers. In addition, on
occasion, I made referrals to plaintiff personal injury lawyers and/or employment
counsel, as the case may be.
Most recently, I continue to accept pro bom mediation and arbitration as well as adjunct
settlement evaluation appointments. Further, over the past several years, I have been
active with the Allegheny County Bar Foundation, first as a member of the Board of
Governors and then as a Fellow and member of the Fellows Committee. The Foundation
exists in large measure to provide legal services to the underserved. Grants are made to
various organizations that provide such services and/or counseling. Presently, I am
working on the Fellows Campaign to attract more Fellows to help underwrite these
expenses. Over the past several years, I would estimate that I have personally recruited
more than two dozen Fellows to this program.
In addition to the above, I have handled on a pro bono basis legal issues of various of our
employees. For example, in 2005, 1 worked with one of our employees to right a number
of problems she encountered in the building of a brand new home. Most recently, I have
counseled an employee concerning the formation of a small business. I have also
reviewed insurance matters for a number of employees.
19
220
2. The American Bar Association’s Commentary to its Code of Judicial Conduct state
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates - through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What have you done to
try to change these policies?
I do not and never have held membership in any such organization.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
Yes. Twice, I have appeared before the local Selection Commission. The first occasion
of my appearance was approximately three years ago. At that time, I was rated relatively
highly as I was invited to the White House to interview for a then current vacancy within
the Federal District Court, sitting in Johnstown, Pennsylvania. More recently, I returned
to be interviewed and provided an update concerning my application. Again, I was
recommended by the local Commission and then appeared at the White House for a
follow up interview. After interviews with staff from the White House Counsel and
Justice Department, completing nomination paperwork, and undergoing a background
investigation, I was notified I would be nominated by the President. My nomination was
submitted to the Senate on July 13, 2006.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No
5. Please discuss your views on the follow ing criticism involving “judicial activism.”
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
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Some of the characteristics of this Ajudicia! activism have been said to include:
a. A tendency by the judiciary toward problem-solution rather than grievance-
resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a vehicle for
the imposition of far-reaching orders extending to brad classes of
individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
My orientation to the law begins with a review of the facts and existing law. A judge is
supposed to apply law to the facts at hand. On occasion, a judge may have to go beyond
existing law to reach an opinion. If that should be the case, then and in that event, the
judge is required to look at the legislative history of the statute or regulation at issue. If a
judge is required to go beyond the existing case law, the judge must review that existing
case law and if there is not precedent for the issue at hand, then look to parallel state or
federal precedent. It is not the role of the judiciary to legislate. It is the judiciary’s role
to provide a fair and impartial tribunal, to apply the law equally and to reach just results,
in an expeditious manner.
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AFFIDAVIT
I, Nora Barry Fischer , do swear that the information provided I this statement is,
to the best of my knowledge, true and accurate.
£ Hi
Notarial Seal
Billie Jo Befidn, Notary Public
City Of Pittsburgh, Allegheny County
My Commission Expires Apr. 23, 2 01 0
^•nhFf Pennsylvania Association of Notaries
223
Thank you.
Senator Coburn. Thank you.
Judge Frizzell?
STATEMENT OF GREGORY FRIZZELL, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLA-
HOMA
Judge Frizzell. Thank you, Mr. Chairman.
Like Ms. Fischer, I have no prepared statement, but would first
like to thank the President for the honor of his nomination. I would
also thank you for your kind words, and thank Senator Inhofe for
his kind words.
I want to thank the Committee for having scheduled this hearing
today, and if I might, introduce my family who is here today.
Senator Coburn. Absolutely. Please do.
Judge Frizzell. First of all my wife of 15-plus years, Kelly Nash
Frizzell, my mother, Shirley Frizzell, my father, Kent Frizzell, and
my sister, Angela Frizzell.
Senator Coburn. Great. And where are the six kids?
Judge Frizzell. With notice on Friday afternoon, we could not
load them all up on the bus and get them here in time.
Senator Coburn. Right.
Any other comments?
Judge Frizzell. No, sir. Thank you.
[The biographical information of Gregory Frizzell follows.]
224
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1 . Full name (include any former names used) .
Gregory Kent Frizzell
2. Address: List current place of residence and office
address (es) .
Residence: Tulsa, Oklahoma
Office Address:
Tulsa County Courthouse
500 S. Denver Avenue, Room 706
Tulsa, Oklahoma 74103-3832
3 . Date and place of birth .
December 13, 1956; Wichita, Kansas
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer’s name and
business address (es) .
Kelly Susan (Nash) Frizzell. Works in the home as wife and
mother of our six children.
5. Education : List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
The University of Michigan Law School, August 1981 to May,
1984; Juris Doctor, May 11, 1984
The University of Tulsa, August 1977 to May 1981; Bachelor
of Arts, May 10, 1981
The University of Virginia, August 1974 to May 1975, no
degree
6. Employment Record : List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations.
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nonprofit or otherwise , including firms , with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
The State of Oklahoma/District Courts, District Judge, 1997-
Present
Oklahoma Tax Commission, General Counsel, 1995-1997
Gregory K. Frizzell, Attorney at Law, 1994-1995
Jones, Givens, Gotcher & Bogan, P.C., 1986-1994
U.S. District Court for the Northern District of Oklahoma,
Judicial Clerk, 1984-1986
Andrews Kurth LLP, Summer Associate, 1983
Holland & Hart LLP, Summer Associate, 1983
Hall, Estill, Hardwick, Gable, Collingsworth S Nelson,
Summer Associate, 1982
Cam-Coors, Truck Loader, Summer 1981
Rotary Club of Tulsa, Director-at-Large, 2006-2007
Tulsa Speech & Hearing Association, President, 1994-95,
Board of Directors, 1986-1995
7. Military Service : Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received .
8. Honors and Awards : List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Robert D. Simms Award for Judicial Leadership, awarded by
Hudson-Hall-Wheaton Chapter of American Inns of Court,
2002
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AmJur Award in Legal Research and Writing
Phi Alpha Theta History Honor Society
Omicron Delta Kappa Honor Society
Oklahoma Rhodes Scholar Finalist, 1980
Eagle Scout, 1973
9. Bar Associations : List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups .
Oklahoma Assembly of Presiding Judges
Oklahoma Judicial Conference
Oklahoma Bar Association
Vice Chairman, Professionalism Committee, 2006
House of Delegates, 2001-2002
State Law Day Committee
Client Security Fund Committee
Tulsa County Bar Association
Board of Directors, 2006
Chairman, Law School/Mentoring Committee, 2001-2002
Court Operations Committee
Law Day Committee
Trustee, Tulsa County Law Library, 1999-2006
American Inns of Court, Hudson-Hall-Wheaton Chapter
President, 2000-2001
Master of the Bench, 1997-2002
Oklahoma Task Force on Judicial Selection, 1999-2000
10. Other Memberships : List all organizations to which you
belong that are active in lobbying before public bodies .
Please list all other organizations to which you belong.
I belong to no organizations active in lobbying before
public bodies.
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Organizations to which I belong, not previously listed in
this questionnaire include the following:
The Rotary Club of Tulsa
Federalist Society
Grace Church, Advisory Board Member, 2005-2006
Meadowbrook Country Club
11. Court Admission : List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice .
Oklahoma Supreme Court, May 3, 1985
Supreme Court of the United States, April 2, 1990
Tenth Circuit Court of Appeals, August 7, 1985
O.S. District Court for the N.D. of Okla., May 3, 1985
U.S. District Court for the E.D. of Okla., January 28, 1988
O.S. District Court for the W.D. of Okla., October 6, 1993
U.S. Tax Court, July 24, 1995
12. Published Writings : List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
Discovery— A View from the State Benc h, Oklahoma Bar Assn.
CLE presentation, 1999
Professionalism, Civility, Discovery Disputes & Motion
Practice , Oklahoma Bar Assn. CLE presentation, April 14,
2000, and presented to Tulsa Title & Probate Lawyers
Association, March 6, 2003
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Justice on the Frontier: The Historic Trial of George
"Machine Gun" Kelly and Other Famous Oklahoma Cases , CLE
presentation to Inns of Court group. Spring, 2003
Deposition Ethics— the Judicial Perspective , Oklahoma Bar
Assn. CLE presentation, September 8, 2000
The Trial of Christ , a speech made to a men's group at my
church, and a Lutheran men's group
Tips to Aide Yourself by Aiding the Court , CLE presentation
to local Inns of Court group, March 21, 2001
A Former General Counsel Reflects on the Effective
Preparation and Presentation of a Case to ALJs , a talk to
the Oklahoma Tax Commission Audit Conference, 2001
Reflections on the Judiciary: Judicial Independence vs.
Judi c ial Accountability , a speech to Phi Alpha Theta History
Honor Society at the University of Tulsa, Spring, 2001
Jurors and Their Antics , a speech to the Will Rogers Rotary
Club, 2002
The Good, the Bad & the Ugly in Trial Practice.: Motion
Practice and the Ethics of Motion Practice , Oklahoma Bar
Association Young Lawyers Division CLE, April 4, 2003
The 2004 Oklahoma Civil Liability (Tort Reform) Provisions ,
a synopsis of statutory changes made by the Oklahoma
legislature that session, Rotary Club of Tulsa, October,
2004
Motions in Motion: A Practical Guide to Getting What You
Want , Tulsa County Bar Association Lunchtime CLE, May 12,
2004
Recent Issues and Developments at the Tulsa County
Courthouse , a talk given to the Tulsa County Criminal
Defense Lawyers Association, January, 2006.
13. Health: What is the present state of your health? List the
date of your last physical examination.
I am in excellent health. My last physical examination was
January 3, 2006
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14. Judicial Office : State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
District Judge, appointed in 1997 and elected without
opposition in 1998 and 2002. Term expires January 8, 2007.
This is a court of general jurisdiction.
15. Citations : If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions .
(1)' Ten Significant Opinions
Major vs. Microsoft , 2002 WL 1585649, 2002-1 Trade Cases 5
73,701, also found at 60 P.3d 511 (Exhibit "A" thereto) and
2003-1 Trade Cases 1 73,933 (Exhibit "A" thereto), wherein
the Oklahoma Civil Court of Appeals adopted the opinion.
Stanley Glanz, Sheriff of Tulsa County vs. Board of County
Commissioners of Tulsa County , CJ-1997-6125 in the District
Court of Tulsa County, Oklahoma, July 17, 1998; affirmed
March 3, 2000, 995 P.2d 1124, 2000 OK 2.
Bank One, N.A. v. Billy R. Sanders , Case No. CJ-2001-220 in
the District Court of Tulsa County, Oklahoma, December 18,
2002 .
Peoples State Bank v. Proms , Case No. CJ-2003-1861 in the
District Court of Tulsa County, Oklahoma, August 14, 2003.
Pezold, Richey, Caruso and Barker v. Cherokee Nation
Industries, Inc. , Case No. CJ-1999-427 in the District Court
of Tulsa County, Oklahoma, August 11, 1999, affirmed at 46
P. 3d 161.
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Denver Corporation vs. City of Tulsa , CJ-1999-3864 in the
District Court of Tulsa County, Oklahoma, affirmed October
15, 2002.
Westby vs. Burger , CJ-200Q-794 in the District Court for
Tulsa County, Oklahoma, January 18, 2002.
Nelson vs. Sanguine, Ltd. , CJ-1996-1851 , CJ-97-2220, and CJ-
98-1923 in the District Court for Tulsa County, Oklahoma,
April 25, 2001.
Bayway Refining Company vs. Helm Inspection Service, Inc,
and Shelter Mutual Insurance Company , Case No. CJ-2003-279
in the District Court for Tulsa County, Oklahoma, June 24,
2004.
Thompson vs. Krantz , CJ-2002-2381 in the District Court for
Tulsa County, Oklahoma, August 25, 2004, affirmed May 6,
2006.
(2) Reversals over nine years on the bench
Connie Covert dba The Glitz v. Southroads Associates , not
officially reported, CJ-1995-2493, July 8, 1998, Okla. Civ.
App. Issues of fact regarding commercial lease agreement
precludes summary adjudication.
Columbus Lee Jones vs. Roger E. Janitz , not officially
reported, affirmed in part, reversed in part, CJ-1995-1771,
February 9, 1999, Okla. Civ. App. Deposition costs awarded
in favor of prevailing party could not include those
incurred in identical action between same parties dismissed
without prejudice by plaintiff, even if depositions taken in
prior action were used in subsequent action.
Sturgeon v. Retherford Publications , 987 P.2d 1218 (Okla.
Civ. App. 1999), reversed with respect to claims of
defamation, intentional infliction of emotional distress and
gross negligence; affirmed with respect to claims of false
light invasion of privacy, false or fraudulent
misrepresentation, and negligent hiring and retention.
Sproles v. Gulfcor, Inc. , 987 P.2d 454 (Okla. Civ. App.
1999). Trial court erred in denying plaintiff's motion to
execute judgment against shareholders of defendant
corporation on the ground that the shareholders' liability
must be pursued in a separate suit.
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Pezold, Richey, Caruso & Barker v. Cherokee Nation
Industries, Inc. , 18 P.3d 364 (Okla. Civ. App. 2001),
sanctions order reversed.
Baytide Petroleum v. Whitmar Exploration , 18 P.3d 378 (Okla.
Civ. App. 2000). Findings made as to claims in equity could
not be used as basis for subsequent summary judgment on
legal claims.
Crosby v. Tulsa Airports Improvement Trust and Tulsa Airpor t
Authority , unreported, Okla. Civ. App., May 8, 2001.
Summary judgment in favor of airport authority affirmed;
issue of fact precludes summary judgment in favor of
airports improvement trust.
Nelson vs. Nelson , affirmed in part and modified in part,
Okla. Civ. App., October 14, 2003, Judgment reduced by a
portion of verdict determined to be double recovery.
Horvat v. State of Oklahoma , 95 P.3d 190 (Okla. Civ. App.
2004), "Mailbox rule" applied to administrative appeals.
Bump v. Desiree Construction , affirmed in part and reversed
in part, unreported, (Okla. Civ. App. 2004), damages reduced
in part.
Pembrooke Park vs. Barnes , unreported (Okla. Civ. App.
2004), restrictive covenant construed to permit parking of
motor home on residential lot.
Henry v. Sims , unreported (Okla. Civ. App. 2004),
limitations period tolled until mandate issued in prior
action .
Martin v. Chubb , affirmed in part and reversed in part,
unreported (Okla. Civ. App. 2004), factual issue as to what
"certificate of mailing" means in insurance policy.
Bourke v. Western Business Products , affirmed in part and
reversed in part, unreported (Okla. Civ. App. 2005),
inference of misrepresentation insufficient to support
portion of jury verdict for fraud.
Meier v. Lefler , affirmed in part and reversed in part,
unreported (Okla. Civ. App. 2005), portions of verdict and
attorney fee award on claims for breach of fiduciary duty
and tortuous interference overturned.
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University of Tulsa v. Employment Security Comm'n ,
unreported (Okla. Civ. App. 2005), agency could have
properly given disciplinary letters little weight in finding
no misconduct.
(3) Significant Opinions on Constitutional Issues
International Ass'n of Firefighters vs. Town of Skiatook ,
affirmed in unreported opinion (Okla. Civ. App. 2005); Art.
10, § 26 of Okla. Constitution, which forces municipalities
to operate on a cash basis, precludes a municipality from
conducting an election pursuant to 11 O.S. § 51-108 (B) in
the budget year subsequent to the year of the collective
bargaining agreement.
Sunoco vs. Messer , unreported (Okla. Civ. App. 2002) ;
injunction preventing defendant from interfering with
plaintiff's business not an unconstitutional. deprivation of
property nor infringement of right of free speech.
16. Public Office : State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office .
General Counsel, Oklahoma Tax Commission, April 17, 1995 to
May 8, 1997. Appointed by Governor Frank Keating and Tax
Commissioners Don Kilpatrick, Robert Anderson and Robert
Cullison .
17 . Legal Career:
a . Describe chronologically your law practice and
experience after graduation from law school
including ;
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk ;
I served as a clerk to the Honorable
Thomas R. Brett, U.S. District Court' for
the Northern District of Oklahoma,
September 1984 to September 1986.
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2. whether you practiced alone, and if so,
the addresses and dates;
616 S. Main Street, Suite 302, Tulsa,
Oklahoma, 74119; January, 1994 to April,
1995
3 . the dates , names and addresses of law
firms or offices, companies or
governmental agencies with which you
have been connected, and the nature of
your connection with each;
1997-Present; State of Oklahoma/District
Courts; 500 S. Denver Avenue; Tulsa,
Oklahoma 74103; District Judge.
April, 1995 to May, 1997, Oklahoma Tax
Commission Legal Division, 2501 N.
Lincoln Blvd., Oklahoma City, Oklahoma
73194; General Counsel.
September, 1986 to January, 1994; Jones,
Givens, Gotcher, Bogan and Hilborne,
Suite 3800, 15 East 5 th Street, Tulsa,
Oklahoma, 74103, Associate Attorney.
b. 1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
General Civil Litigation. I began in 1984 as
a federal law clerk, which provided
experience and exposure to civil trial work
as well as criminal trials. When I began
with a firm in 1986, the initial focus was
almost exclusively on commercial litigation.
In about 1989, I began to do increasingly
more work as outside counsel to a large
(20,000+) local community college. In about
1990, I began doing more defense work for
corporate and individual insureds. In solo
practice beginning in 1994, I tended to
represent both individuals and smaller
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business entities in civil controversies, but
I also handled some criminal defense and the
defense of an institution of higher
education. Beginning in April, 1995, I
focused on tax law issues in administrative
proceedings and in state and federal courts.
In May, 1997, I was assigned a civil docket,
so I have necessarily focused on civil trial
work. I have, however, handled a handful of
criminal jury trials.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
Small, medium to large business entities
(general civil litigation) ; individual
insured motor vehicle owners insured doctors
of osteopathy, and companies (insurance
defense litigation); a large metropolitan
community college (higher education law) ;
individual plaintiffs (FELA/personal injury
litigation) ; small business creditors
(debtor/creditor law) ; and a state tax agency
(tax litigation) .
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance, giving
dates .
I appeared in court occasionally at the
beginning (1986 to 1990) . In 1991, I began to
appear in court with increasing frequency.
That steadily increased until 1997 and from
that point I am in court every day.
2 . What percentage of these appearances was in :
(a) federal courts: 40%
(b) state courts of record: 60%
(c) other courts .
3 . What percentage of your litigation was :
(a) civil: 97%
(b) criminal : 3%
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4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
Twenty-five. Six as sole counsel, ten as
chief counsel, nine as associate counsel
5. What percentage of these trials was:
(a) jury; 24%
(b) non- jury. 76%
18. Litigation : Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties .
1 . Tulsa County Public Facilities Authority v. Oklahoma
Tax Commission , 955 P.2d 741 (Okla. Civ. App. 1997).
Held: public facilities authority owed tax and penalty
for unpaid tax on receipts from pari-mutuel wagers. I
represented the tax agency in the dispute as General
Counsel in 1996 and early 1997. In this dispute, I
personally appeared in a parallel action brought by
appellants in probate court in Tulsa County, oversaw
and counseled the audit division on the assessment,
directed the administrative proceeding, and counseled
the briefing on appeal. Assistant General Counsel John
A. Grissom, Jr., Suite 108, 221,9 S.W. 74 th St.,
Oklahoma City, OK 73159 (405) 680-9593 and Assistant
General Counsel Sean R. McFarland, 2501 N. Lincoln
Blvd., Okla. City, OK (405) 521-3141. Opposing counsel
- Graydon D. Luthey, Jr., Hall, Estill Law Firm, 320 S.
Boston Ave., Tulsa, OK 74103 (918) 594-0400.
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2. 0' Carroll v. Oklahoma Tax Commission , 952 P.2d 45
(Okla. 1998) . Held-. Oklahoma statutory law imposes a
duty upon taxpayers to notify the Tax Commission, by
amended tax return or by letter, of any adjustment or
correction in federal income within one year of the
federal adjustment or correction. I participated as
supervising counsel in the case, and was personally
involved in the legal positions taken. The matter was
briefed to' the Oklahoma Supreme Court in October, 1996.
Deputy General Counsel was Robert B. Struble, 3829
Northridge Road, Norman, OK 73072 (405) 623-2107.
Opposing counsel was Scott W. Bradshaw, 1717 E. 15 th
St., Tulsa, OK (918) 749-3338.
3 . Daimler-Benz Aktiengesellschaf t v. O.S. District Court
for the Western District of Oklahoma , 805 F.2d 340
*(10“ Circuit^ 1986) ; writ of mandamus issued to stay
order compelling Daimler-Benz to produce discovery
until the O.S. Supreme Court issued its decision in
case dealing with same issue. The firm represented
Daimler-Benz and I handled writ proceedings in October
and November, 1986. The case was before Judge David L.
Russell in the Western District of Oklahoma. Although
the result was "significant" for me as a young lawyer,
the success was short-lived, as the. O.S. Supreme Court
decided that the Hague Convention did not apply to
foreign parties subject to the jurisdiction of a
federal court. Lead counsel for Daimler-Benz was
Alfred Kent. Morlan, Suite 403, 406 S. Boulder, Tulsa,
OK 74103 (918) 582-5544.
4 . Crawford Enterprises Manufacturing, Inc, v. Ryder/P-I-E
Nationwide, Inc, and Granite State Insurance Company
(Garnishee) , Case No. 84-C-395-B in the O.S. District
Court for the Northern District of Oklahoma. Issues of
alleged reliance by plaintiff on certificate of
insurance issued by Granite State. Successfully
represented Garnishee Granite State Insurance Company
before Judge Thomas R. Brett in the Northern District
of Oklahoma in late 1991 and through 1992. Affirmed on
appeal to 10 th Circuit Court of Appeals, # 92-5217.
Opposing counsel: Robert B. Sartin, Barrow & Grimm,
Suite 300, 610 S. Main St., Tulsa, OK 74119 (918) 584-
1600.
5 . In the Case of Linda K. Self for Reconsideration of
Denial of Disability and Disability Insurance Benefits ,
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Hearing held February 5, 1995 before U.S.
Administrative Law Judge Dana E. McDonald of the Social
Security Administration Office of Hearings and Appeals.
Held: Ms. Self met disability insured status due to
severe impairment following the surgical removal of the
frontal parietal area of her brain and removal of part
of a brain tumor. The result for the client was very
rewarding. Representation began 12/93 and ended 03/95.
6. Redbird v. Oklahoma Tax Commission , 947 P.2d 525 (Okla.
1997) . Held: Oklahoma statute of limitations
applicable to claims for refund of income taxes applies
even where exemption from taxation is federally
granted. I participated as supervising counsel in the
case, and was personally involved in the legal position
taken in the action.. Deputy General Counsel (now Asst.
Atty General) Kathryn Bass, Suite 260, 4545 N. Lincoln
Blvd. , Oklahoma City, OK 73105-3498 (405) 521-4274.
Counsel for taxpayers - G. William Rice, 1601 Gordon
Cooper Drive, Shawnee, OK 74801 (405) 878-4844.
7 . Dobson Cellular Systems, Inc, v. State Board of
Equalization , 957 P.2d 569 (Okla. Civ. App. 1998).
Held: Court of Tax Review lacked jurisdiction to
determine whether taxpayer was a public service
corporation for purposes of ad valorem taxation. Case
remanded to district court to make determination.
Substantive issue addressed in Dobson v. State Board of
Equalization , 27 P.3d 1029 (Okla. Civ. App. 2001) .
Held: company laying fiber optic cables under public
highways was "public service corporation" subject to
Board' s ad valorem assessment. I was personally
involved in the legal positions taken in the action.
Assistant General Counsel (now Asst. Atty Gen.) David
L. Kinney, Suite 260, 4545 N. Lincoln Blvd., Oklahoma
City, OK 73105-3498 (405) 521-4274. Counsel for
Dobson - Collier H. Pate, Suite 418, 211 N. Robinson
Ave., Okla. City, OK 73101 (405) 235-4211.
8 . El Paso Natural Gas Company v. Oklahoma Tax Commission ,
929 P. 2d 1002 (Okla. Civ. App. 1996). Held: Court of
Appeals affirmed the Tax Commission's denial of El
Paso's protest of assessment of gross production and
petroleum excise taxes on $12 million paid in
settlement of "take-or-pay" provisions of gas purchase
contracts. As General Counsel I was personally
involved on the take-or-pay taxation issues before the
Commission at the time. Deputy General Counsel (now
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Asst. Atty General) Kathryn Bass, Suite 260, 4545 N.
Lincoln Blvd., Oklahoma City, OK 73105-3498 (405) 521-
4274. Counsel for El Paso - Richard B. Kells, Suite
1600, 201 Robert S. Kerr Ave., Oklahoma City, OK 73102
(405) 235-7000.
9. Noram Energy Corp. v. Oklahoma Tax Commission , 935 P.2d
389 (Okla. Civ. App. 1995) . Court of Appeals affirmed
denial of taxpayer's protest of an assessment of
$536,291.62 on a "take-or-pay" settlement payment to
gas producer Ricks Exploration. Deputy General Counsel
(now Asst. Atty General) Kathryn Bass, Suite 260, 4545
N. Lincoln Blvd., Oklahoma City, OK 73105-3498 (405)
521-4274. Counsel for Noram - Kenneth L. Hunt, Suite
400, 320 S. Boston Ave., Tulsa, OK 74103 (918) 594-
0400.
10. U.S. v. Augustin Jaramillo , Case No. 4 : 94-cr-00027 in
the United States District Court for the Northern
District of Oklahoma, entry of appearance 03/25/94,
closed 10/20/94. Represented defendant Jaramillo, an
undocumented alien, against whom the government
dismissed federal counts of possession with intent to
distribute Cocaine and Marihuana on October 20, 1994,
at which time state prosecutors filed a state claim of
possession. Defendant pled nolo and state court
sentenced client to 2 years with credit for time served
and balance of time suspended. Federal Prosecutor
David E. O'Meilia (now U.S. Attorney), 110 W. 7 th
Street, Suite 300, Tulsa, OK 74119-1013 (918) 382-2700.
Counsel for co-defendant Paul D. Brunton, Suite 1225,
One W. 3 rd St., Tulsa, OK 74103-3532 (918) 581-7656.
19. Legal Activities : Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
In private practice around 1990, I represented relators in a
potentially significant Qui Tam case. The relators had
information that certain oil and gas companies were not
making the proper royalty payments to the United States
government for oil and gas production on federal lands.
Upon submission of the proposed claim to the Minerals
15
239
Management Service, the government declined to take on the
action. My clients decided they did not have the financial
resources to prosecute the action on their own.
I worked on behalf of a medium-sized national broadcasting
network to enforce "must-carry" rules as against Tulsa Cable
Television. My work as a young lawyer at the time was as an
associate for the partner responsible for the client and was
in the nature of researching, preparing documents, and
meeting with the client with the partner. The firm was
ultimately successful -on behalf of the network.
As General Counsel to the Oklahoma Tax Commission, I
provided counsel to the Commissioners on matters that arose
at bi-weekly meetings over the two-year course of my tenure.
This included issues related to motor fuel taxation
following the U.S. Supreme Court's 199,5 decision in Oklahoma
Tax Commission v. Chickasaw Nation , wherein the Court held
that Oklahoma could not apply its motor fuels tax to fuels
sold by tribe in Indian country. As a result, the state
moved the legal incidence of the tax upstream from the
retailer to the rack.
In another interesting matter, I appeared on behalf of the
■Oklahoma Tax Commission before a retired Oklahoma Supreme
Court Judge supervising the Oklahoma Multi-County Grand
Jury. The issue presented involved a subpoena, issued by the
grand jury for confidential tax records held by the
Commission. As another example, I was very involved in an
administrative case involving an Oklahoma lawyer who earned
a thirty million dollar contingency fee in a jury case tried
in West Texas. The lawyer filed an amended return wherein
he took the position that he had been a resident of Texas
(which does not impose a state income tax) during the time
he worked on the Texas action.
For nine years I participated and served in a local chapter
of the American Inns of Court. The purpose of Inns of Court
is to improve the skills, professionalism and ethics of the
bench and bar through mentoring, discussion, and monthly
programs. I served in various roles, including Master of a
"pupillage group" for several years and as President of the
Inns. Each pupillage group consists of law students and
lawyers of various experience levels. The interaction in a
pupilage group allows less experienced lawyers to learn
side-by-side with the most experienced judges and attorneys
in the community.
16
240
In bar-related activities, I currently serve on the Tulsa
County Bar Association's Board of Directors and as Vice
Chairman of the Oklahoma Bar Association's Professionalism
Committee. It was particularly rewarding to serve as
chairman of the Law School/Mentoring Committee in 2001-2002
in our continuing effort to provide law students with "real-
world" experience in the practice of law.
17
241
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
None .
2 . Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts-of-interest during your initial
service in the position to which you have been nominated.
I will strictly comply with the Code of Conduct for United
States Judges, applicable statutes, rules and procedures
regarding any potential conflict of interest. I will ensure
financial holdings are listed on a conflicts list and plan
to designate a staff member to check each and every filing
for any companies on the list to ensure no actual or
potential conflict arises.
In light of the fact that it has been nine (9) years since I
represented the state tax commission and eleven (11) years
since I represented any private client, I do not anticipate
a conflict in that regard.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
18
242
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report
5 . Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See attached Financial Net Worth Statement
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
Yes .
Citizens for Judge Frizzell, 2002, candidate.
Citizens for Judge Frizzell, 1998, candidate.
Frank Keating for Governor, 1994, volunteer
Paula Unruh for Congress, Special Election, 1994, Counsel
Bob Dole for President, 1992, Tulsa County Chairman
Burns Hargis for Governor, 1990, volunteer
Don Nichols for U.S. Senate, 1990, volunteer
Dewey Bartlett for Tulsa City Council, 1990, volunteer
John Bryant for State Rep., 1986 and 1988, volunteer
Kent Frizzell for Governor of Kansas, 1970, volunteer
Kent Frizzell for Attorney General, 1968, volunteer
Kent Frizzell for State Senate, 1964, volunteer
19
243
.'.•'r-SWOS-V . ... .
IMPORTANT NCrtlJS: The instruction* uocornpjmylng (his form nuts! he followed, Complete ell parts, checking tlte NON1S box Tor each part
where you hove no reportable iftibnnution. Sign on last page.
I. POSITIONS, (Kcpoi ling individual only; see pp. 9-13 of filing instructions)
{ I NONE - (No reportable positions.)
POSITION
District Judge
II, AGREEMENTS. (Reporting Individual only; see pp. Id-16 of filing instructions)
bd NONE • (No rvpurtaMc agreements.)
I.
RATE
PAR TUS AND T HUMB
244
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Frizzell, Gregory K
6/15/2006
HI. NON-INVESTMENT INCOME. (Reporting individual and spouse; seepp. 17*24 or filing instructions)
A. Filer’s Non-Investment Income
5 i NONE - (No fOptatuhJe non-investment income.)
DATS SOURCE AN D TYPK CWaiMCUMil
(yuuis, mu mouse's)
1.
2004
KUiC of Oklahoma
88,355-00
2.
2005
State of OWsIkmh
89,885.70
3.
2006
State Of Oklahoma
38,723.30
It. Spouse's Non-I it vestment Income * (If you were married during uny portion of the reporting year, please complete this section. Dollar mwuint
ml required except for lionwnrm.)
M NONE/ - (No reportable iion-in vestment income.)
PATH SOtIUCHA NDmr.
IV. REIMBURSEMENTS — tmnK|«irtatioii, lodging, food, entertainment.
(Includes those to spouse and dependent children, See pp. 25-27 nf Instructions.)
I i NONE * (No such returnable reimbursement*.)
SQURCC
HXRMr*T
Dnsottp rioN
245
FINANCIAL DISCLOSURE REPORT
Nome cl' Person Reporting
Dale of Report
Frizzell, Gregory K
6/1 .*5/2(100
V, GIFTS . (Includes those 1« spmtsc and dependent children. .See pp, 78-3 1 of iron actions,}
f 1 NONE - (No well reportable gifts.)
VAIAI.l t
VI, LIABILITIES. (Include* (hose of spouse and dependent children. Soepp. 32-34 of instructions.)
M NONE - (No roponablc liabilities.)
CRHDUim DESCRI PTION V ALUE OODK
I.
246
FINANCIAL DISCLOSURE REPORT
Page 1 of 3
Name of Person Repot ting
DftleufRqpoit
iTi/wli, Gregory K
6/1 S/20015
VII. INVESTMENTS Olid TRUSTS - IraKrtrat (tocW« H.— oTfl« d-f-odirf di.t.i.ei Kre (ip. -M-,7
A.
Dcswijifion of Aswti
(iiic-Mini', iruM wads)
it
Jnusmt durinc
reporting period
C.
( hOM value xl end of
reporting period
Transactions
H.
InnMfi reporting put
-
(1)
Amount
Cadet
(A 40
(2)
Type te.p.
div. feri.w
int.)
<«>
Value
Code 2
DP)
(2)
Value
Method
Ceric 3
(O-W)
<>>
Type te.R.
buy, M'H.
merger,
redemption)
If iioievoii^n from diaries® c
Place “(XF tflcf oacli asset exom|M
tiont prior duel®, sire
(?)
Date:
Moults -
Day
(3)
Value
Code?
(TP)
«)
Gam
Code
MA-
W
Idefitiiy of
Imyw/xuller
(if private
tfnnwctioH'l
I I NONH (No I'CiufinNs income, AS*tls, of iranssrtimf)
| , JF M organ (.‘{use Batik Accmmls
A
interest
X
T
lsXHMPT
2-
Covenant Federal Credit Union
A
Interest
i
T
'
3,
Custodial S&1* Index Unit Trust for Benjamin
pri«elt(fiPY)
■a
J
r
■
<t.
Ciwtodiitl S&P Index Unit Tiust for Hannah pcteell
(SPY)
A
H
J
T
■
5.
Custodial S&F Index Uni( IVnrt for Robert FrimcJl
(SPY)
A
Dividend
J
T
■
6.
Custodial S&P Index Unit Trust for David I'riw-dl
(SPY)
A
Dividend
H
H
■1
■
7.
Custodial S&P Index Unit Trust for Rlfeabeth
lVImctl (SPY)
A
Dividend
■
m
X.
(,'u.Mtndial S&V Index 1 Init Treat for Jubilee 1 •rizzcil
(SPY)
HI
nm
Hi
H
■
9.
UBS Brokerage Account (Kelly Frrewsil}
■ i
■
-
■ I
JO.
•Occidental Petroleum Common Stock
A
Dividend
■
H
■
Jl.
•Veriwm ( irenmon Stock
A
lXvidcnd
■
U
■
12.
•(IBS Bunk USA Deposit Account
A
Interest
H
■
■
■
13.
Smith liamey Brokerage Account (Kelly Friisatll)
s
M.
•AM UN Common Stock
A
Dividend
}
m
■
■
IS.
-UNl Conurnm Stock
A
Dividend
}
r
■
■
16.
-CSCO Common Stock
A
Dividend
1
t
17,
-INK' Common Stock
A
Dividend
i
T
18-
•SGU Common Stock
A
Dividend
i
T
t. lopoinc/Gnill Codes-,
A
-S 1,000 or less
H - *1,001-52.500
C - *2,301-55.000
P - *5,00 L-S 15,000
(Sec Columns it) and Dll
V
- sso.ooi-sioo.tmo
c, -sioo.om-$i.«Ki.«>o
Hi - SI ,000.00 1 -*3,000,000
112 - Man than SS.OOtyxtO
2 . Value Code*:
J
- S(5,tiof> or lew
K - 51 5,001 -Jsti.OOO
1. * *50,00 t-$l«).QO0
M -5 100.00 1-S250.1RXI
(8w(Mvmw Ct ami IB)
N
- *2«l,(K»-S50CMX)t)
- 525,000,001 4S0.W9.000
O -*300,001-51,000,000
Pi - J 1,000,0111 -VS.000,000
lM -SMorethsrtSsO.OOO.OOO
P2 - SJ,O0fl,OQl-*25,000,(KKl
3, Value M-:i lied Codes
Q
-AptHfliual
R - Cost (Real Trifle Only)
S •• AfMMmwl
T - Casli/ft1*ik«t
(See Ciilmim C2)
U
- Utxik Value
V -Otises
W - L'Minuicd
247
FINANCIAL DISCLOSURE REPORT
Page 2 of 3
Name of Pwvrai Reporting
Dale of Report
Frizzell, Gregory K
mmm
VH. INVESTMENTS and TRIJS’J'S - hic-vuc. value, Srmseslionx (includes those of flic spouse mid dcfcodwt ctntriitm. S«pp..M-57ofniio|'i«nro<j(teiis;.)
A.
Description of Amis
(uidmlinK tout asscls)
Place “(X)" after cacti m exempt
few prior iKse<uMirc
D.
fawrer during
reporting period
C.
Crxs value ie end of
reporting period
0)
Amoimt
Code 1
{A 40
■jj
d
<n
Value
Cedal
<J-P)
(2)
Value
Mclhod
Crate S
(y-wj
{»)
Tfl* (c.g.
Imy, wjll,
jnerpur,
redemption!
m
Dale:
Month -
Day
<*>
Value
Cade 2
tMO
<*>
(lain
Code
1 (A*
C5)
Identity r if
buyvt /setter
(if private
Iranuteiuml
19.
-WCU. Common Stock
A
Dividend
}
■
20.
•QQQO Closed end fund (Index tmft H-uj.1)
■a
Bl
Hi
■
■
■
21.
-SPY Closed end fund (index unit trust)
■a
IB
■
■
■
■
22.
Morrill Lynch SliP Account
Ml
■
■
23.
-US Treasury Strips
A
j
Hi
■
24.
-C Common stock
A
1 1
j
T
■
25.
-DClil , Common Stock
A
mi
m
T
■
26.
-INTC Common Slock
A
«
T
27.
-PI 'll Common Stock
A
Dividend
J
H
28.
-PPH Common Slock
A
Dividend
J
T
v
29.
-STA Common Slock
A
Dividend
}
T
30.
-APOCX Mututif Fund
A
Dividend
}
1
31.
•M'TWAX Mutual Fund
A
Dividend
I
T
32.
-MI. Dunk USA Money Account
A
Imereti
■
T
33.
-ML Retirement Reserve* Account
A
Interest
H
T
34.
KiKiicfSavo Retirement .Savings Account
35,
-AliPflX Mutual Fund
A
Dividend
i
T
36.
-ACUNX Mutual Fund
A
tXvldcnd
i
T
1. I««w»e/G*iti Crates- A - $1,000 orient It .*1,001-52,500*" C - 51,501-55.000 I) - S5. 00 1 -SI 3,1)00 n - 1 1-5,00). $30,(100
(SecCetummltl MidTM) V - $5(1.(1014 100,000 G -$ 100,001-$ 1, 000. 000 111 - $1.000.00145, OlHI.nm 112 - Mora Ilia.. $5,000,000
2. Value CT mIbk J - $15, «W ot lew K -$15,001450.000 1. « $50,001 4l00.<Ki0 M -$1(1(1,00 14250, 000
CSloCnJliliiiwCI WK1U3) N - $?„50.000-S.«K),tK» O -$500,001 -51 .000.000 PI - $1.000, «ri.$5,mm.000 1*2 - $5,<I(K),001425.(100,I«IO
PJ - S3S,0Wi,imi 450.000,000 1*4 - $Murettin« SSO.OOO.OOO
3. Value Method (.Tides Q — Appraisal R - Cosl (Heal IWate Only) 8 * Assessment T * CmWMmIcoi
(Sfe Column Cl) U -Monk Value V -Other W -l'«(WMod
248
FINANCIAL DISCLOSURE REPORT ing ~~~ [SSSiSS
y«ge 3 of 3 Prizt&H, Orcgury K 6/15 /20C
Vli. INVESTMENTS snd TRUSTS - tocoetv. value, (rwifinuiciw (iaeJiafos (hone of flic 4 *>isic and dcpcmtew children. S» pp. 34-3? Ilf rai»R tosnwilww.)
37. *JSCVX Muiual Fund
38, -TWVAX Muiual J‘»n<t
39, -PNt OX Mutual l-und
40, -HKiKX Mutual Fund
1. Iiiwiinc/Gm'n Code*:
A
Sl.Wta kv«
n
— J 1,00 142, 51X1
C - S2.S(ii.$5,«10
I> - SS.5KU-SI 5,000
(KccttMwiwiB) and IX)
V
-• SSO,<Wi4IOO,(MK!
o
- 5 100, 001 -VI. 000, 0<l(l
HI - $!,(!0<),OOI-S5.0fXl,000
1(2 - Mure (hail S 5.000.000
2, Value Codec
1
*"SlS,000«tcw
K
-S 1 3,01)14-50,000
L ~ $5(1,001 4 1 00.000
M -JIMUXn -3250.000
(See CalunKiv Cl ami 0.1)
N
1*1
- S250.OQU-J5tlO.OOfi
- S2S,CX!0,OOI 450.000.000
O
- Ssim.fxii-Vi.ooo.ooo
PI ~ J1,Q<».OOI45.000.<HI(I
IM *■ SMore Itan S5II, 1X10,000
n - 55.000,001425,000,00(1
3. Value MtHhod CodoJ
Q
• A)»prfliia!
R
“ CM (Real lUulc f>nly)
■ S - AASdSsmtiil
T - OaMMarfca
(Sre C'oUhihi Cl)
U
- BiHik Value
V
- 011*1
W - Hslinuitcd
249
FINANCIAL DISCLOSURE REPORT
Name or Pctxon Reporting
Fiteell, Gregory K
DatcflfKqunt
6/15/2000
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS ia*a»amati«a«u
FINANCIAL DISCLOSURE REPORT
Name of Person RepoftiUR
Frisael], OregoryK
Date of Report
0/15/2006
IX. CERTIFICATION.
I certify Him all information given abqve (including Information pertaining to my spouse and minor or dependent children, if
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
1 further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 1J.S.C, $ 501 et. seep, 5 U-S.C 5 7353, and Judicial Conference regulations.
Blgnature_
Dal e ^
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSHiUS OK FAILS TO Fit ,1! THIS REPORT MAY
Hli SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (S U.S.C, app. I 104)
250
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
251
FINANCIAL STATEMENT - NET WORTH SCHEDULES
US Government Securities
ZCLGC $ 4,367
Listed Securities
OXY 13,129
VZ 17,222
AEPGX 1,304
ACRNX 996
JSCVX 1,495
TWVAX 288
DNLDX 1,464
BIGRX 2,197
WFSPX 578
TRBCX 2,059
RPBAX 566
RPSIX 364
AMGN 6,759
BNI 11,612
CSCO 3,936
INTC 10,832
SGU 660
WGL 2,592
QQQQ 7,764
SPY 67,837
C 16,989
DCEL 193
PFE 165
PPH 6,984
STA 833
APGCX 3,143
MTWAX 1,261
Total Listed Securities 1 83,222
Unlisted Securities
UBS Bank USA Dep. Acct. 1 7,987
ML Bank USA RASP 19,363
ML Retirement Reserves 7,136
WTS Imperial CR Inds. Inc. 415
Total Unlisted Securities $44,901
Real Estate Owned
Personal residence
$ 275,000
252
III. GENERAL (PUBLIC)
1 . An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
From 1986 to 1995, I volunteered with the Tulsa Speech &
Hearing Association. I negotiated and resolved a funding
dispute over competing claims to United Way funds by two
agencies providing services to the deaf and hearing
impaired. I drafted corporate documents creating a
subsidiary non-profit with a separate board of directors.
After the dispute settled, I continued to provide ongoing
legal advice to the parent board. I estimate the time
devoted to the effort averaged 5 hours per month. When I
became President of the board in 1994, I averaged
approximately 15 hours per month.
From about 1988 to 1990, I drafted wills on a pro bono basis
for poor elderly Tulsans. I estimate I spent approximately
3 hours per month when a referral was made.
Since 1997, I have been a member of the downtown Rotary Club
and have participated on the Immunization Committee, which
organizes, sponsors and subsidizes immunization clinics in
order to raise the level of immunizations among poor
children in Northeastern Oklahoma. I am currently an at-
large member of the board, which oversees club functions,
including numerous committees serving the disadvantaged.
2 . The American Bar Association ' s Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates — through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership.
What you have done to try to change these policies?
20
253
No. During college, from 1974-75 and 1977-81, I was a
member of a fraternity (Kappa Sigma) which did not admit
women .
3 . Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
No. It is my understanding that the two U.S. Senators each
chose a group of three individuals to vet the potential
candidates . The Senators subsequently conducted personal
interviews in May 2005. In November 2005, I interviewed
with two representatives from the Office of White House
Counsel and one representative from the Department of
Justice. I was later interviewed by an agent of the Federal
Bureau of Investigation. After my background investigation
was completed and reviewed, my nomination was forwarded to
the United States Senate on June 7, 2006.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years . It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this “judicial activism" have
been . said to include :
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
21
254
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
The Constitution of the United States established three
branches of government with separate and distinct powers.
The Federal judiciary is vested by the Constitution with
"the judicial Power of the United States." Such power
extends only to that limited jurisdiction specifically set
forth in Article III, Section 2.
A judge's role is to address cases-in-controversy and
not to impose policy preferences and personal values, or
attempt to solve broad social problems. By adhering to
requirements of standing and ripeness, judges can ensure
their decisions are grounded in real, fact-intensive cases
and help them steer clear of policymaking.
Federal judges must guard against "judicial activism"
in the sense of imposing their own policy preferences and
personal values through their decisions . The Federal
judiciary can properly limit itself by showing restraint,
yielding to the informed judgment of legislatures, and
adhering to the doctrine of stare decisis.
22
255
AFFIDAVIT
I, Gregory Kent Frizzell , do swe ar that
the information provided in this statement is, to the best of my
knowledge, true and accurate.
C3,<3t56tfSSr
256
Senator Coburn. Thank you.
Judge O’Neill?
STATEMENT OF LAWRENCE J. O’NEILL, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA
Judge O’Neill. Good afternoon. I would first like to thank, also,
the President for the nomination. I would like to thank you for
your words and for convening this Committee meeting so that we
could move forward. I would like to — and I will hold off just a sec-
ond if you would like.
[The biographical information of Lawrence J. O’Neill follows.]
257
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Lawrence Joseph O'Neill
2. Address: List current place of residence and office address(es).
Residence: Fresno, California
Office: (chambers): 2500 Tulare Street
Fresno, CA 93721
3. Date and place of birth.
September 05, 1952
Oakland, California
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es).
Married.
Kathleen Matzen O'Neill
Retired Dental Hygienist
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
University of California, Hastings College of Law
Attended: August 1976-May 1979
Degree: J.D. May 1979
Golden Gate University, San Francisco
Attended: September 1974 to June 1976
Degree: Masters, Public Administration in June 1976
University of California, Berkeley
Attended: September 1970 to June 1973
Degree: Bachelor of Arts in Criminology in June 1973
258
6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
January 1999 to the present
U.S. District Court, Eastern District of California; United States Magistrate Judge
February 1990 to January 1999
Fresno County Superior Court; California Superior Court Judge
December 1986 to June 1992
San Joaquin College of Law; Adjunct Professor
September 1979 to February 1990
McCormick, Barstow, Sheppard, Wayte and Carruth Law Firm; Associate, 1979-83;
Partner, 1984-90
January 1979 to May 1979
First District Court of Appeal; Research Attorney for Appellate Justice Robert F. Kane
June 1977 to December 1978
Alameda County District Attorney’s Office; Law Clerk
September 1973 to December 1978
City of San Leandro, California; Police Officer
June 1973 to September 1973
Alameda County District Attorney's Office; Aid in Inspector’s Division
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
I have had no military service.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Recipient of the “20 Years of Service” award for service to the Fresno County Mock Trial
competition program.
Recipient of the first annual “Youth Character Award” presented by the Clovis Unified
School District for teaching legal issues in the areas of character and the law.
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259
Recipient of the annual Judicial Award presented by the Rape Counseling Service of
Fresno County.
Recipient of the Judy Andreen-Nilson Award for outstanding work in the area of child
abuse prevention, while serving as the Presiding Judge of the Juvenile Courts of
Fresno County.
Award for Achievement in the area of Juvenile Justice presented by the Fresno County
Juvenile Justice Commission
Professor of the Year award, San Joaquin College of the Law, while a professor in Civil
Trial Advocacy.
Annual Mentor’s Award presented by the County Bar Association’s Young Lawyers.
9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
Federal Bar Association, Judicial Member, Executive Board, 1999-present
Federal Magistrate Judges Association member, 1999-present
Fresno County Bar Association
Attorney member: 1979 to 1990
Judicial member: 1990 to present
Ninth Circuit Magistrate Judge Executive Committee, Board Member 2003-2006
Association of Business Trial Lawyers, Board Member 1996-2006.
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you belong.
None
11. Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the reason
for any lapse of membership. Give the same information for administrative bodies which
require special admission to practice.
California State Bar Member
Attorney Member, 1979-1990
Inactive Judicial Member 1990- present
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260
United States District Court for the Eastern District of California
Attorney member: 1979-1990
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
“Alcohol and Sand Don't Mix." Presented to the Clovis Unified School
District for publication in their District newspaper;
“Counsel and the Courthouse: A Judicial Chat" published in the California
Trial Lawyers FORUM magazine
“Civil Jury Trials: A Judge's Cookbook." written for and donated to the California
Judicial Education and Research Institute to help newly appointed Superior Court
Judges who had little or no experience trying civil cases
Speech delivered in May 2002 on the occasion of the annual Peace Officers Memorial.
Other speeches delivered have been in the form of educational presentations about the
structure and workings of the court system. They have been delivered from brief notes
(no speech written). There has been nothing controversial or sociological about them,
nor have they involved judicial philosophy type comments.
13. Health : What is the present state of your health? List the date of your last physical
examination.
I am in excellent health. My last physical examination was June 5, 2006.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Since January 1999 1 have served as a United States Magistrate Judge in the United
States District Court for the Eastern District of California.
From February 1990 to January 1999 1 served as a Fresno County Superior Court Judge.
I was appointed by then Governor George Deukmejian. It is a court of general
jurisdiction, handling all civil matters over $25,000, all felonies, all family law, all
probate matters, and all juvenile court matters.
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261
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
(1) Significant Opinions:
Calaway v Interstate Bakeries CV-F-01-6533 LJO
This case involved allegations of racial discrimination in the workplace. The
opinion of the Court dealt with matters under Rule 56 of the Federal Rules of Civil
Procedure (Summary Adjudication)
Morales-Opett v County of Fresno CV-F-02-6626/7 LJO
This claim dealt with allegations of civil rights violations under 42 USC 1983.
The underlying case involved the execution of a search warrant by the District Attorney’s
office of the County, as well as undue force during the alleged illegal execution. The
opinion of the Court centered on summary adjudication issues pursuant to FRCP 56.
Cerda v United Brotherhood of Carpenters CV-05-00616 LJO
The underlying action centered on a personal injury that resulted from union
picketing. Subissues included agency matters. The legal matter before the court was one
of the propriety of the removal of the case from state court. (28 USCA 1446)
Abdulla v Sally Beauty Company CV-F-98-6552 LJO
This was an employment dispute matter, centering around age discrimination,
breach of a labor contract, and Intentional Infliction of Emotional Distress matters. The
issue before the Court was summary adjudication under FRCP 56.
Flying J, Inc. V Central California Kenworth CV-F-95-5030 LJO
This case involved allegations of copyright infringement dealing with
architectural plans of nationwide truck stops. The motion before the Court was for
summary adjudication of issues pursuant to FRCP Rule 56.
Tokyu Trading Corp v USA AGRO, Inc. CV-F-00-5557 LJO
This was a diversity case involving a breach of contract claim. The issue before
the Court was a choice-of-law provision in the contract.
Condit v National Enquirer, Inc. CV-F-02-5198 OWW/LJO
This case was one for libel and slander arising from the Congressman Gary
Condit matters surrounding the death of an Extern in Washington, D.C. The case was
brought by the Congressman’s wife. The specific issue involved was the Journalist
Privilege under Branzburg v Hayes.
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262
Arkin v Spencer Batcheler CV-F-03-5903 LJO
This was a 1 st Amendment case brought against a County Counsel surrounding a
dependency juvenile case under Welfare and Institutions Code, section 300 et.seq, and
specifically pursuant to 42 USC 1983 (civil rights violations). The matter before the
Court was a summary adjudication one (FRCP Rule 56)
Nationwide Mutual v Liberatore CV-F-02-5741 LJO
This was an insurance coverage matter involving legal issues in the areas of
employment and personal injury. It involved the issue of whether a member of the
United States Navy was in the course and scope of employment at the time of an
accident. The Court’s involvement dealt with a motion to dismiss (Rule 12b, FRCP) and
summary adjudication (Rule 56, FRCP).
Adams v Speers CV-F-02-5741 LJO
This was a wrongful death matter involving the California Highway Patrol, with
civil rights allegation brought under 42 USC 1983. The motion for the court was for
summary adjudication under Rule 56, FRCP.
(2) Reversals:
Cunningham v Bloxom, 9 th Circuit #01-16610, decided 11-04-03
Pro Se inmate brought a civil rights claim against a prison employee to trial. The
Circuit Court upheld the Trial Court on the issue of refusal to provide counsel in a civil
case. The Circuit Court reversed the Trial Court on its failure to tell the Jury, during Voir
Dire, which side had prepared the “Neutral Statement of the Case.”
Elliott v Wackenhut Corrections Corporation
SP Circuit, #02-15049, decided 02-20-2003
The plaintiff filed suit against his employer, claiming that he was terminated for
writing letters to government officials complaining about mismanagement at the
Corrections facility. The Trial Court granted summary judgment, and was reversed,
holding that the letters sent by the plaintiff included matters NOT included in the statute
permitting him to file suit, but also included information that a jury “could conclude”
were included in the statute.
Carlton v Hernandez, 9‘ tl Circuit. (Two cases decided)
#04-16057, decided April 4, 2005 affirming Trial
#02-15056, decided November 27, 2002, affirming in part, and reversing in part.
This case involved the plaintiffs being taken into custody by an airport police
officer, and thereafter claiming civil rights violations under 42 USC 1983. The District
Court affirmed the dismissals of the City of Fresno and the police officer on the basis of
failing to exhaust all administrative remedies, but reversed on the ruling of dismissal
against the officer in his individual capacity.
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Blind Doan v Sanders, 9 th Circuit. #00-17194, decided May 28, 2002
The case involved the alleged sexual assault of an inmate by a correctional
officer. After a jury trial, the District Court reversed the jury’s defense verdict, finding
that a clear record was not made to support the exclusion of a witness involving an
alleged non-sexual attack on a different inmate. (Circuit Court decision included a
DISSENT)
Garcia v Barnhart, 9 th Circuit, #04-15812, decided April 20, 2006
The case involved a social security disabled benefits case. The Commissioner of
Social Security denied the benefits, and the Trial Court upheld the decision. On reversal,
the Circuit Court remanded, instructing the Trial Court to remand to the Social Security
Administration. The issue was the rejection by SSA of certain designated physicians.
(3) None
16. Public Office : State (chronologically) any public offices you have held, other
than judicial offices, including the terms of service and whether such positions
were elected or appointed. State (chronologically) any unsuccessful candidacies
for elective public office.
None
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the
period you were a clerk;
I did not serve as a clerk after graduation from law
school.
2. whether you practiced alone, and if so, the addresses
and dates;
I have not practiced alone.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
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264
January 1999 to the present
United States District Court for the Eastern District of
California
2500 Tulare Street, Fresno, CA 9372 1
United States Magistrate Judge
February 1990 to January 1999
Fresno County Superior Court
1100 Van Ness Avenue, Fresno, CA 93724
California Superior Court Judge
August 1979 to February 1990
McCormick, Barstow, Sheppard, Wayte and Carruth.
5 River Park Drive East, Fresno, CA 93729
Associate (1979-83), Partner (1984-90)
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has
changed over the years?
Civil litigation (torts) for the entire ten years of practice.
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
I specialized in tort defense work representing insurance
companies and public entities (Counties, Cities, School
Districts).
c. 1. Did you appear in court frequently, occasionally, or not at
all? If the frequency of your appearances in court varied,
describe each such variance, giving dates.
I appeared in court frequently.
2. What percentage of these appearances was in:
(a)
federal courts:
5%
(b)
state courts of record:
95%
00
other courts:
0%
3. What percentage of your litigation was:
(a) civil: 99%
(b) criminal: 1%
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265
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating
whether you were sole counsel, chief counsel, or associate
counsel.
I was in my 50 th trial when I received the call appointing me to
the Superior Court. In all but one, I was the sole counsel.
5. What percentage of these trials was:
(a) jury: 90%
(b) non-jury: 10%
18. Litigation : Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
(1) Ligon v Continetal Gin Company, Fresno Superior Court #301999-0
In this products liability case resulting in the traumatic removal of the hand of a
young cotton gin worker I represented one of three target defendants. The result was a
defense verdict for my client and an award of $600,000 against a co-defendant.
Jury trial. (Filed Oct 11, 1983)
Judge: James Ardaiz, The current Presiding Justice of the Fifth District Court of Appeal,
Fresno. 2525 Capitol Street, Fresno, California 83721 Telephone: 559-445-5491
Attorneys: Richard C. Watters 2844 Fresno Street, Fresno, California 93721; telephone 559-
486-5200 (counsel for Plaintiff)
Michael Marderosian 1260 Fulton Mall, Fresno, California 93721; telephone 559-441-7991
(counsel for second defendant)
Peggy Liggett (deceased)(counsel for third defendant)
(2) Stubblefield v Palmer, Fresno Superior Court 3301887-6
Hunting Accident resulting in partial blindness of a teenager. Tort case. I represented
the parent of the injured teen, on a cross action for indemnity. Defense verdict: jury trial.
(Filed October 7, 1983)
Judge: Dennis Caeton (retired)
Attorneys: Paul Auchard 2377 W. Shaw Avenue, Suite 106, Fresno, Calif. 9371 1; telephone
559-432-0991 (represented the target defendant/X-complainant).
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L. Clarke Rountree 2505 B West Shaw, Suite 190Fresno, Calif 9371 1 represented the
Plaintiff; telephone 559-650-6555.
(3) Romero v Leach Fresno Superior Court #304589-5
The case involved the death of a pedestrian resulting in the wrongful death
accusations against my client. After several days of jury trial, and at the conclusion of the
plaintiffs case, a motion for nonsuit was granted. (Filed December 13, 1983)
Judge: Leonard I. Meyers (decease)
Opposing Counsel: Fernando Chavez 1530 The Alameda, San Jose, California 95 126
408-241-3903
(4) Grundy v Fresno Unified School District Fresno Sup. Ct. #307929-0
The case involved an allegation of negligence against my clients, who were two.
teachers and the school district. While on a field trip, a student severed tendons and nerves
in the bottom of the foot resulting in permanent neurological deficits. A defense verdict was
rendered by the jury in favor of my clients.
(Filed: February 17, 1984)
Judge: James Quaschnick
Opposing Attorney: Robert Gilmore 1111E. Herndon #204, Fresno, California 93720
telephone: 559-436-1100
(5) Watts v McConnell, Fresno Superior Court #336938-6
The case involved a hit and run accident which caused a rollover type incident. Three
unbelted passengers died resulting in death claims. The jury returned a verdict in favor of
my defendant clients. (Filed October 8, 1985)
Judge: Robert Z. Markidian (deceased)
Opposing Attorney: A now-sitting Superior Court Judge, Donald R. Franson 1100 Van
Ness Avenue Fresno, Calif 93724; telephone:559-488-1825
(6) Ryan v Fresno Unified School District, Fresno Superior Court #343584-9
The case involved a motorcycle/pedestrian accident on a school ground which led to
a serious, crippling let injury to the pedestrian. The issue against my client, the school
district, was one of dangerous condition to public property. The jury returned a defense
verdict in favor of my client. (Filed February 25, 1986)
Judge: Now-sitting, Court of Appeal Justice Gene Gomes
2525 Capitol Street, Fresno California 93721
559-445-5491
Opposing Counsel: Michael Seng P.O. Box 14180, Fresno, CA 93650;
telephone 559-436-61 1 1 represented the Plaintiff.
(7) Flagg v Raymond/County of Tuolumne, United States District Court, Eastern District of
California #CV-F-86-102 REC; Monterey Superior Court CR 11915.
This case involved allegations of civil rights against my client, a County of Tuolumne
sheriff s deputy. The plaintiff s decedent died while in custody. My client was charged both
criminally and civilly. My participation in the murder trial was limited to medical aspects of
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the defense, which led to the acquittal of the client, and a reopening of the FBI’s civil rights
file against the responsible police officer. (Filed 1986; dismissed December 12, 1990)
Federal Trial Judge: Robet E Coyle, 2500 Tulare Street, Fresno, CA 93721 559-499-5641.
State Trial Judge: Robert O’Farrell (retired)
(8) Bass v California State Automobile Association, Madera Sup Ct 36428
This case was an alleged insurance bad faith suit against the CSAA. The underlying
set of facts involved the death of the insured. The issue was a medical one: causation.
Verdict in favor of my client. (Filed May 1, 1987)
Judge: Paul Martin (retired)
Opposing Counsel: John Dawson (retired; no longer listed as a member of the California
Bar)
(9) Reynolds v County of Fresno, Sheriff McKinney, Fresno Sup Ct #347875-1
The case was an alle3ged wrongful shooting/civil rights violation case against my
client wherein a wanted felon was shot dining the arrest. After a two week jury trial, my
client was found not liable. (Filed May 16, 1986)
Judge: Stephen R. Henry (retired)
Opposing Counsel: James Elia 2300 Tulare, Suite 140, Fresno, CA 93721; 559-498-3600
(10) Fresno Unified School District v Ebersole, Fresno Superior Court #3375396-9
This case finally settled. It involved forty different plaintiffs and sixteen consolidated
cases. The underlying allegations were that a school principal improperly videotaped school
children in sexually explicit circumstances. I represented the school district on a negligence
theory. (Fresno County Superior Court Clerk’s office unable to locate file in the archives.
Date of filing, unknown. Estimate: 1987)
Judge for extensive motions: James Thaxter (retired)
Opposing Counsel: A.D. Canelo 548 W. 21 st Merced, California 95344 209-383-0720
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of your participation in this
question, please omit any information protected by the attorney-client privilege
(unless the privilege has been waived.)
While there have been hundreds of important and significant client contacts and
interesting factual and legal issues dealt with over the years, there is one that stands out
as being more worthwhile in result.
I was retained by the California Automobile Association to defend the parents of
a University of California student wherein the son was killed in an automobile owned by
them. At first blush, it seemed as though it was a nothing-unusual insurance defense
case. It turned out to be one of the most challenging legal and humanistic cases in which
I was involved during my years of practice. It involved a case where the friend of my
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268
clients’ son sued for personal injury, claiming he was a passenger in the car being driven
by the deceased son. Through expert engineering work, it became obvious that the
plaintiff had been the driver, and he had NOT been the passenger. Instead, the now-
deceased son of my clients was the passenger. The legal work was interesting and
important, but the most important aspect of the case turned out to be the more than 50
hours of uncompensated time spent with the parents working out their emotional and
moral dilemma issues, including the devastating betrayal by their son’s best friend. For
me, it was a timely reminder of the importance of practicing law. The case did not go to
trial, but rather was dismissed. The parents eventually moved on with their lives, and
almost ten years later, wrote a letter of touching gratitude reminding me what the
attorney client relationship truly should be. I haven’t forgotten the lesson.
More recently, for more than a decade, I have dedicated three full days per
year teaching 9 classes at the Intermediate School level. The topic is The United
States Constitution, and it is taught on the first day of that new subject matter. It is an
interactive attempt to illustrate the importance of the Rule of Law and its source. The
students are certain that the class is going to be a huge bore. Three minutes into the
class, they realize that their expectations were incorrect. Sixty minutes later, there is
NO student who can contain himself or herself with the excitement they feel for the
law and how it affects them. To see the transition is tantamount to seeing an
evolution of the concept of no future, to hope for that same future.
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269
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for
any financial or business interest.
Because I served as a Superior Court Judge for nine years, I am vested in the
California Judges Retirement Plan. Commencing at age 62, 1 will be paid the
equivalent of 25% of what a sitting Superior Court judge is paid. That payment will
last for life.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which
you have been nominated.
In the 16 plus years of being a Judge, I have had only one situation where I had a
conflict of interest that required my recusal. I know of no financial arrangements that
create potential conflicts. Nonetheless, I personally review each case assigned to me
as soon as the assignment is made to prevent the problem, and will continue to do so,
if I am confirmed as a United States District Judge. I presently abide by and will
continue to follow the Code of Conduct for United States Judges, along with all
applicable statutes, procedures and policies.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the court?
If so, explain.
I have no such plans, commitments or agreements.
4. List sources and amounts of ail income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so, copies of the financial
disclosure report, required by the Ethics in Government Act of 1978, may be
substituted here.)
See attached Financial Disclosure Report.
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270
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See attached financial net worth statement.
6. Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates of
the campaign, your title and responsibilities.
No
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271
AO 10
Rev. 1/2006
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1978
(5us.c.m>.§§m~ui)
I. Person Reporting (last name, firtt, middle initial)
2. Court or Organ izatiou
3. Date of Report
O'Neill, Lawrence J
Eastern District of California
08/02/2006
4. Title (Article III Judges Indicate active or senior status;
5a. Report Type (check appropriate type)
6. Reporting Period
magistrate judge* indicate foil- or part-time)
jxj Nomination. Date 08/02/2006
District Judge Nominee
Q Initial Annual Q Final
07/31/06
5b. Q Amended Report
7. Chamber* or Office Addreis
8. On the bath of the Information contained la (hit Report and any
modifications pertaining thereto. It la, In my aplnion; In compliance
United States Courthouse
2500 tulare Street, Dept 8
Fresno, California 93721
with applicable law* and regulations.
Date
:
IMPORTANT NOTES; The instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each part where you have no reportable information. Sign on last page
I. POSITIONS. (Reporting individual only; see pp. 9-1 S of instructions.)
NONE (No reportable positions.)
POSITION
NAME OF ORGANI
ZATION/ENTTTY
I. Member, Board of Directors
Association of Business Trial Lawyers
2. Board of Director
Federal Bar Association
3. Member
9th Circuit Magistrate Jduges Executive Boaid
4. Trustee
Trust #1
5.
II. AGREEMENTS • (Reporting Individual only; see pp. 14-16 of Instructions.)
I | NONE (No reportable agreements.)
BA XE
1. 1999
State of California Judges Retirement Plan (pension commences at age 62)
272
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date af Report
Page 2 of 6
O'NelQ, Lawrence J
08/02/2006
III. NON-INVESTMENT INCOME. (Reporting indbidual end spouse; see pp. 17-24 af instructions.)
A. Filer’s Non-Investment Income
jx .[ NONE (No reportable non-investment income.)
mm sP-yR.CE,ANP..TYP.H incqmb
(yours, not spouse's)
2 .
-F
B. SpOUSe'S Non-Investment Income - If you tvere married during any portion of the reporting year, compute this section.
(Dollar amount not required except for honoraria.)
(x } NONE (No reportable non-investment income.)
DATE
1 .
2 .
IV • REIMBURSEMENTS — transportation, lodging, food, entertainment.
(includes those to spouse and dependent children. Seepp. 25-27 of instructions.)
H NONE (No reportable reimbursements.)
■SOURCE DESC RIPT ION
2 .
3.
4.
5.
273
FINANCIAL DISCLOSURE REPORT
Page 3 of 6
Name of Person Reporting
O'Neill, Lawrence J
Date of Report
08/02/2006
V » GIFTS . (Includes those to spouse and dependent children. See pp. 24-17 of Instructions.)
NONE (No reportable gifts.)
SOURCE DESCRIPTION
i
VALUE
2.
3.
4.
5.
VL LIABILITIES. ( Includes those of spouse end dependent children. See pp. 13-34 of Instructions.)
[X 1 NONE (No reportable liabilities.)
CREDITOR
1.
YALUBiMB
274
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Dare of Report
Page 1 of 4
O’Neal, Lawrence J
ok/ozam
VTT- INVESTMENTS and TRUSTS -iacorae,¥3]uc,mDsca«ions(i!KhaIestlK3Seof*espQuseandd^iendcTitc3jadrea Sssri 34-57 of filing instructions.)
A.
Description of Assets
(including trust assets)
B.
Income during
reporting period
C
Gross value at end of
reporting period
D.
Transactions during repotting period.
(!)
Type («-&
buy, sell,
merger,
redemption)
If not extnpt fitan disclosure
Place “(XT after each asses exempt
from prior disclosure
Amount
Code)
(A-H)
Type (e,g.
intj
Value
Code 2
G-P)
Value
Method
Code 3
(Q-W)
(2)
Date
Month -
Day
- (3)
Value
Code2
(I-P)
(4)
Code 1
(A-H)
(5)
Identity of
buyer/seller
(if private
transaction)
O NONE (No reportable income, assets, or transactions)
■P
' v
1 . Wells Fargo Bank { Trust #1)
A
Interest
■
■
fxe*fs+
■
B
Vanguard Money Mkt Acct
B
Interest
■
■
B
Clovis Community Bank {Trust #1)
A
Interest
■
■
■a
4.
Argonaut Corp Livermore, Calif. 1985, $84,200
(Trust#!)
D
Distribution
M
a
5.
Columbia Housing IX Ltdprtnr 1988 525,767 (
Trust #1)
B
Distribution
K
R
fl
American . Funds: New Economy Fund (Trust #1)
D
Interest
H
■
7.
American Funds: New Perspective ( Trust #1)
C
Dividend
K
T
fl
American Funds: Europacific <Trust#l)
c
13531
K
T
■
American Funds: Fundamental Investors ( Trust #1)
c
Dividend
J
T
10.
American Funds: Bond Fund (Trust #1)
B
Dividend
J
T
11.
American Funds: Small Cap ((Trust#l)
B
Dividend
1
T
12.
American Funds: High Income (Trust #1)
A
Dividend
J
T
13.
First Trust Corp (IRA) (Trust#l)
None
L
T
14.
Vanguard Intermediate Acct (Trust #1)
None
K
T
13.
SFG foe Fund of Renton, Wa. (Tnaat #1)
D
Interest
M
T
'16.
Datalyrot (IRA) { Trust #1)
None
M
T
17.
Wells Fargo Bank acct #2
A
Interest
H
H
18.
Calif EDL FACS Authority muni bond
A
Dividend
j
T
1. luconw'Gaio.Codw: A = SI, 000 « less- B ~JU00M2,SQ0 <? -SWOt-JSiDOO' D-- “■5S.001-J1S.000 B “ $15^103 -ISO, -000
(See C0larans>'BI .aD4X>A) F'. =$SO,OOHJ.OO.OW. - Q , -S10a.Offl^Sr,QQD^OO' HI- =-Sl4OOO.'OOfcS5iO0ff,Qp(>. 1 * 3 H2;,«*4ora.tt«o45.qO0,OOO
i.Vntae.Codes: ‘ - X i- SlS.Oedbr-less, , K - $151001-150, OOOr . .. U - $50,Q01-Sia},©00 Mv “$500,001-3250,000! .
<S«e-ColttmnsGIairfJJ3) - : N-' - S25O;00ft;J5QO,00O: QV - S508,M1-W>000;£t00- PI - - Jl.tKJO.OS.ivSSioeaOOO- E£-~S5;O0<^00t«25,00OX)00'
P3 = J2Si000.001 -MO, 000.000 P4 =SMore thaa.$S<) i OOOtiXK>-
3. Value Method Codes . Q « Appraisal. R -Cost (Real Estate Oflly) S - Assessment T- -Cash/MJaket
(SceColumnC2) U' -BookVilue V- -Other W -’Estimated'
275
FINANCIAL DISCLOSURE REPORT
Name ofPetsoa Reporting
Date of Report
Page 2 of 4
O'Neill, Lawrence J
oS/o^ow
VfT. INVESTMENTS TRUSTS - facnn*. value, traascations (incfades those of the spouse and dependent children. See pp. 34-57 of filing instructions.}
A.
Description of Assess
B.
Income during
reporting period
C.
Gross value at end of
reporting period
0.
Transactions during reporting period
0)
Amount
Code 1
(A-fi)
(2)
Type (e.g.
div. renter
mt)
©
Value
Code 2
(J-P)
0)
Type^Je-g.
redemption)
If not raarq
>1 from disclosure
Place "(Xy after each asset exempt
ftotu prior disciosure
Value
Method
Code 3
(Q-W)
<2)
Date
Month-
Day
. P)
Value
Code 2
<H}
(4)
Gain
Code I
(A-H)
<5>
Identity af
buyerfseiler
(if private
transaction)
19.
Desert Funding, foe. Mortgage Note ( Trust #1)
D
Interest
H
B
■
20.
Macwest Riverside Housing fov, LLC
None
H
B
■
21,
American Funds: Capita! focome Builders (Trust #1)
A
Interest
■
B
■
22.
California State Univ revenue muai bond j.
A
Interest
H
B
■
■
23.
Dallas/Ft Worth Tex Inti muni bond
B
Interest
■
T
24.
Oregon Go Elderiy/Disabled muni bond
A
Interest
J
T
25.
Oregon HSG and Community SVCS REV muni
bond
B
mu
m
T
26.
Oregon State muni bond
A
1
j
T
27.
Port of Portland Oregon Airport muni bond
A
interest ,
■v
j
T
28.
Puerto Rico Electric Power muni bond
A
Interest
B
T
29.
San Francisco hit Airport muni bond
A
Interest
J
T
30.
St Louis MO Airport muni bond
A
Interest
J
T
31.
Bank of America intemo corporate bonds
B
Interest
B
T
32.
Bank of America Sub Nat corporate bonds .
B
Interest
K
T
33.
Bank of New York corenot corporate bonds
B
Interest
K
T
34.
Bear Steams COS foe corporate bonds
B
Interest
B
B
35.
Caterpillar Finl SVCS Pwer corp bonds
B
Interest
m
T-
16.
Citigroup Global Med Term note
B
Interest
K
—
T
1. laconWGain Codes: => StOOO ortess- B -SI.OOMtt^QO. C -$2,501-15,000 D -S5.001-S1 5,000 B ~$1 S.OOMS&.OOO
(See- ColatnusBl-atutlM) ■ R~ - S50,m JIOO.OOO £T -SlOO.OO^SfvOOO.OOO m. -Sl.OOO.OOl-IS.OOOiOOO H2\»Morete:-£S.0i»,000
1 Value Codes: ' ; rf ' -'$lftOW,ordassL : \-TCi>Sl5»01%BflWW<rv; . U ; " S50,OOI«00'.000,^; . ;M!. -5100. 001^1250, 000
(See .ColsmnsCl andDS) 1 * 3 - N"' ~S25W»0^J0CriQ00.'- . 0'j - $500;0£a^l^000,006?' PI\ -Sl>000,00tvis,00c9»0 : - • E& ~SJ,O9O;Q05r525iOQO;OO0-
■’ ' • Flf^SHoietbajiSSOJWOSa)^ i ■ ■■ ■
3. Value Method Codes: Q> - Appraisal R ; “-Co*t(BeaUBs«ate<)nly). Si --Assessmeatv t. .-Gash/Mtefet-
(See Column C2) 1J -Bbote Value. ' V- -Other VW -.Estinated’: • ' ■ . - • ’ ■ ■ - ■
J6
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting j
Date of Report
Page 3 of 4
CNeiH, Lawrence J |
oic/oifl OOfi
"VH* INVESTMENTS snd XSXJS TS — income, value, transeations (includes those of &e spouse and dependent chSdrea. See pp. 3 4-5? of Sling instructions.)
A.
Description of Assets
(iacludiag trust assets)
B.
Income during
reporting period
C.
Grass value at end of
reporting period
Transactions during reporting period
0)
Amount
Code!
(A-H)
<?>
Type (eg.
div. rent or
int)
TO
Value
Code 2
(M>)
(2)
Value
Method
Code 3
(Q-W)
m
If no! exempt ftom disclosure
Place "pty after each asset exempt
from prior disclosure
It )
Date:
Month -
Day
• (3).
Valee
Code 2
(W>
(4)
Grin
Code I
(A-H)
m
Identity of
buyer/setter
(if private
transaction)
37.
Delta Natural Gas iac debenture
A
Interest
■
B
m
■
■
38.
General Electric Cap Corporation bond
A
interest
■
1
m
■
39.
GTE North Inc »
A
interest
■
40.
Household Fin Corp bond
B
bterest
B
B
■
■
41.
J.P. Morgan Chase Sc Co corp bond
B
Interest
B
m
■
42.
Key Bank corporate bond
B
Interest
K
T
■
■
43.
Laclede Gas Co 1st mortgage
B
Interest
J
T
44.
Lasallc Fundings LLC note
B
htcrest
B
T
45.
Marshall and ilsiey Corp corporate bond
B
Interest .
K
T
46.
Pacific Bell corp bond
B
Interest
H
H
47.
Providence Gas Co. bond
A
Interest
j
T
48.
Prudential Finl Inc corp bond
B
Interest
K
T
49,
Southwestern Bell Tel Co corporate bond
B
Interest
B
T
50.
Verizon MD, Inc corporate band
B
Interest
K
T
51.
Bank of America stock
A
Dividend
J
U
52.
Healthcare Realty Inc. stock
A
Dividend
B
H
53.
Now York Community Bancorp Inc
stock
B
Dividend
■
m
54.
Capital World Growth and Income mutual fund
A
Interest
1
■
1. Income/Gaiir.Ojdesi A -$1,000 oriess
(SeedSohnraaiBl' and/E)4) - JR «SSQ.00l-H90;000'- '■
Z'Vtloteodess- - •••• JcV»*M5i(IOO , os=feiss'
(See Columns Ci and m) {*' -J2SO.O0O.S5OO;OOO -
E^ t -m,^OOI-KC>.()0(J3>00
3. 'ValueMethodCcKicS: Q" -Appraisal:
(SecC61mro02): IR 1 “^ootlVade
B : -Sl,001r»2400
0 .' - S100,00l-S.n<«0;00^.
K- -Sl5fl0!ejKia,0t»»-
01 -55fl«oBnsr:ooOiOoo
R ': - Gost(RealEsta(e Oiiiy)i
v : ' -afters
C . - S2,SW-S3i000 D ~$S;00l4l5,«)0
H!> -Il.OOOdM^SS.OOOiOOO H2 «Moreftim:S5^0Q,000.
t,. «$5D,OQl*ROO.OQff‘ • Wi- «SroO;001-J23Q,000 ■
MV - Sa.06Q,«)liS3?)(»,t»00.. _ E.; .'-JSiOOQ?WUSZ5^OO.0OO
' JuCLl • ■ .
■&.>- -Assessment • "it- —Oash/Merket
vj’--- ^EsttaBtedt : \ r: \ V -
» $15.001 -SSO.OOO
277
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 4 of 4
O'Neill, Lawrence!
VTT- INVESTMENTS and TRUSTS - income, value, trairscations (mdades !hose of the spouse and dependent children. See pp, 34-57 of filing insttoctionj-)
1
Description of .Assets
Income during
reporting period
Gross value at end of
reporting period
Transactions during reporting period
m
Ifnot exempt tom disclosure
Place "(X)” after escb asset exempt
front prior disclosure
Amotmt
Code I
CA-H)
Type (e^.
no.)
Value
Code 2
P-P)
Value
Method
Code3
(Q-W)
jig
m
Date:
Month -
Day
(3)
Value
Code 2
a-?>
«
Gain
Code 5
(A-H)
f5)
identity of
truyet/seller
(if private
transaction)
55. Investment Company of American mutual fund
A
interest
J
T
■
IncomB'Oam Codes. A - $1,000 or less
(See CohnreoBl JcrLIM) . F - $50,001-5100,000
2. ValoeCodes: - I* ’•SJi.QOOor-teS'
(SeeCotanra CI andiDl). IF. - 5230,000- WO&COO
P3- « S2*000;0(M -150.000,000
1 Vtlue Method. Codes Q:r —Appraisal:
(See Cdtara*C2) TJ. -'BookO/ilne,
B - 51.001-S2.500' G. ” J 2.50 1 ‘J 5.000
Oc - $100,001 - 5 1 .000,000 • HI- -51.000,001*15.000.000-
Kv « $ijioo**S60iOOo-- v - $so.oov$ioo.-ooa
0>— 5SCKWXJWl.000.-000- PV^~$t,CH»0OT-S5.00(r,O00.
P4> — JMoreiUun SSO.OOQ.OOO '
Rv ** eost.(ReaLEsttteOaly> S-. -Aasessnatt
V -Other. . W- ' - Estimated
Dv ■»t5iW14IS.OOO E - $15,001-550.000
H2- i—MonsOlan: 55,000^)00
P2ii i"'$5t.000;e0n$2i.000‘000
T -GoShasdatket'
278
FINANCIAL DISCLOSURE REPORT
Name of Penes Reporting
Date ef Report
Page 5 of 6
O'Neill, Lawrence 3
08/02/2006
VIII. ADDITIONAL INFORMATION OR EXPLAN ATIONS. (Indicate part ef Report)
Part HI. A, — Non-investment income received during the reporting period as salary for United States Magistrate Judge
FINANCIAL DISCLOSURE REPORT
Name of Penes Reporting
Date *f Report
Page 6 of 6
O'Neill, Lawrence 3
08/02/2006
IX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if any) is
accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld because It met applicable statutory
provisions permitting non-disclosure,
I further certify that earned income from outside employment and bonoraria and the acceptance of gifts which have been reported are in
compliance with the provisions of 5 U.S.C. app. g 501 et seq., 5 U-S.C. g 7553, and Judicial Conference regulations.
Slgnature_
U.<gU4?t ~ 2 - ( JLO O (z>
NOTE; ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT TO CIVIL
AND CRIMINAL SANCTIONS (S DJ5.C. app. § 104 )
FILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N.E.
Washington, D.C. 20544
279
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including hank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
280
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
Edward Jones Account
(See attached Financial Disclosure Report)
Total Listed Securities $ 766,851
Real Estate Owned
Personal residence $ 1,100,000
Limited partnership #1 100,000
Limited partnership #2 125 ,000
Limited partnership #3 25,767
Total Real Estate Owned $ 1,350,767
281
m. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving
the disadvantaged." Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount of time devoted to each.
While a practicing lawyer, on a consistent basis, I donated at least one hundred hours
per year either to teaching/coaching in the High School Mock Moot Court
competition or donating legal services to The Maq'orie Mason Center (a shelter for
abused woman). As a judge, I continue to donate time to teaching activities: junior
high school (U.S. Constitution), High School (Government class), Law School (moot
court competitions), and the high school mock moot court competition.
2. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or religion.
Do you currently belong, or have you belonged, to any organization which
discriminates — through either formal membership requirements or the
practical implementation of membership policies? If so, list, with dates of
membership. What you have done to try to change these policies?
I do not belong to at present, nor have I ever belonged to any such organization.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
interviews in which you participated).
Yes. It is a bipartisan committee of 3 Republicans and 3 Democrats. I was ranked
number one out of that committee on a unanimous vote.
I filled out the extensive application for the judgeship. The bipartisan committee then
reviewed all applications submitted, and ultimately interviewed six. Of the six, two
moved onto the next interview process with Mr. Gerald Parsky of Los Angeles. Mr.
Parsky, after interviewing both, forwarded both names to the White House. After
interviews with the White House Counsel’s Office and a thorough background
investigation, I was informed that my name would be submitted to the Senate. I was
formally nominated on August 2, 2006.
15
282
4. Has anyone involved In the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner that
could reasonably be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
5. Please discuss your views on the following criticism involving "judicial
activism."
The role of the Federal judiciary within the Federal government, and within
society generally, has become the subject of increasing controversy in recent
years. It has become the target of both popular and academic criticism that
alleges that the judicial branch has usurped-many of the prerogatives of other
branches and levels of government.
Some of the characteristics of this “judicial activism” have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties
upon governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions
in the manner of an administrator with continuing oversight
responsibilities.
Judges take an oath. It is not a symbol of something. It is a promise to be diligent in
learning the law and applying the law. It is also a promise not to write the law. When we
ignore the promises, we insult the oath, the Constitution and the co-equal branches of
government. We ignore the staicture of the government. Judges must respect the Rule of
Law and follow it every day. If a judge ignores the law, that action can affect the trust our
Nation needs to have in the judicial branch.
The doctrine of Separation of Powers and the issue of limited jurisdiction of the court
(defined in laws addressing standing, jurisdiction, and case and controversy) are not casual
16
283
1, Lawrence Joseph O'Neill, do swear that the information provided in this statement is,
to the best of my knowledge, true and accurate.
284
Senator Coburn. Senator Feinstein?
Senator Feinstein. Can I get settled?
Senator Coburn. You bet. You bet. We will wait and allow you
to settle.
PRESENTATION OF LAWRENCE O’NEILL, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA,
BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
apologize. We were in our caucus and I was the last one up to talk
about FISA. So, I appreciate this opportunity.
I would like to, first of all, thank Chairman Specter for the ac-
commodation of my request for expedited consideration of Judge
Lawrence O’Neill’s nomination to the Eastern District of California,
and it is my great pleasure to introduce him here today.
His appointment is really critical because there is a major judi-
cial emergency in the Eastern District of California. The Fresno Di-
vision to which Judge O’Neill is nominated is suffering from a par-
ticularly acute overload of cases.
Judge Oliver Wanger and Senior Judge Anthony Ischi are cur-
rently the only judges in this division. They share a caseload of
2,928 active cases. Now, this is an average caseload of 1,464 active
cases per judge. It is the highest caseload by far in the Nation. By
contrast, the average weighted caseload nationally for a Federal
district court judge is 524 cases, so this is three times that.
The people of Fresno and the Eastern District truly need the
help that Judge O’Neill can provide. Fortunately, he is uniquely
qualified to step in and offer some immediate relief because he has
been a Magistrate Judge in the District since 1999, or for 7 years.
In addition, for the last 17 years he has been a judge in Cali-
fornia, spending 10 years as a Superior Court Judge in Fresno be-
fore becoming a Magistrate. He is a home-grown Californian. He
was born in Oakland.
He attended school in our State. He received a Bachelor’s Degree
in Criminology from the University of California at Berkeley, a
Master’s degree in Public Education from Golden Gate University,
and a law degree from Hastings College of Law, which is where my
daughter, now a judge, received her law degree as well.
So before attending law school, he was a police officer for the
City of San Leandro, and I think that additional perspective is ac-
tually an asset on the bench because I assume he then has street
smarts as well as academic smarts. The ABA has unanimously de-
clared him to be “Well Qualified”, their highest rating.
Now, as you know, in California we have a bipartisan process.
Anyone that would like to be considered to be a judge can apply.
They are screened, they are interviewed, and this commission,
chaired by Mr. Parsky, contains three Democrats, three Repub-
licans, and Judge O’Neill’s nomination was the product of this com-
mission.
He was one of five nominees submitted to the President for his
consideration. Although Senator Boxer could not be here today, she
asked me to relay her support for his nomination. She will be en-
tering a separate statement into the record.
285
So, Judge O’Neill, I congratulate you on this nomination. Mr.
Chairman, I thank you, and hope we can move this through speed-
ily so that this emergency can be alleviated.
Thank you.
Senator Coburn. Thank you, Senator Feinstein. And Judge
O’Neill, I do not know if you introduced family or not, but you are
more than welcome to do so.
Judge O’Neill. Not yet. Senator Feinstein’s entrance was very
timely because I was about ready to thank her as well.
I do thank you, Senator, for your words, and also the help that
your office and Senator Boxer’s office has been to move us forward
so that we can take care of the emergency that you have amply dis-
cussed.
I would like to introduce my family, if I could. My wife, Kathleen,
and my son, William. William flew all night to be here. He is in
his last year of Hastings Law School as well. My daughter Erin
sends her best, as she is starting her last year at Northwestern
University in Evanston, Illinois. After hearing for 10 minutes why
it was just impossible to be here, I understood. I accepted it.
Lastly, my mother sends her best. She is also a lawyer. She
started University of California, Bolt Hall, back in 1940. She is 87,
and her health does not permit her to be here, but she is certainly
here in spirit.
Senator Coburn. I understand. Well, you certainly have the
background and academics to handle 1,500 active cases a year.
Judge Wood?
STATEMENT OF LISA WOOD, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF GEORGIA
Judge Wood. Thank you. I want to first begin by thanking the
Committee for giving us the opportunity to have this hearing, and
to thank my home State Senators, Senator Chambliss and Senator
Isakson, for supporting me, and the President as well for nomi-
nating me.
I would also like to introduce my friends and family who have
made the journey from Georgia. I have with me my husband, Rich-
ard Wood. The first of our twins, Katherine Wood, and my son,
Lachlan Wood, fell asleep earlier. But he is in my mother’s arms.
That is my mother, Sue Godbey, my father, Dr. Edsel Godbey.
Also here with me is Judge Anthony Alaimo, who, as an 86-year-
old, got up at 4:00 this morning to fly to be here with us today.
I was privileged to clerk with him and he is my mentor, and I am
honored by his presence.
Also with him is his courtroom deputy, Loyal Buford Rowe. My
two best friends have come to be with us as well, Rita Spalding and
Ginger Adams.
Finally, I would like to thank the staff of the U.S. Attorney’s Of-
fice for making me look good. Thank you.
[The biographical information of Lisa Wood follows.]
286
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Lisa Godbey Wood is my full name.
Lisa Sue Godbey is my maiden name.
2. Address: List current place of residence and office address(es).
Residence: St. Simons Island, Georgia
Office addresses: U.S. Attorney’s Office
100 Bull Street
Savannah, Georgia 31401
U.S. Attorney’s Office
1 Tenth Street, Suite 530
Augusta, Georgia 30901
3. Date and place of birth.
My birthdate is January 28, 1963. My birthplace is Lexington, Kentucky.
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es).
I am married to Richard V. Wood, who is retired from the Federal Bureau of Investigation.
He works part-time at the Federal Law Enforcement Training Center in Glynco, Georgia.
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
The University of Georgia School of Law, Fall 1987 - May 1990; Juris Doctor Degree,
summa cum laude, May 1990.
The University of Georgia, Fall 1981 - June 1985; Bachelor of Arts, summa cum laude June
1985
6. Employment Record : List (by year) ail business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
1
287
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
2004-Present
1995-2004
1991-1994
1998-2000
1990-1991
1989
1988
1987
1986
1985
Employee of Department of Justice, United States Attorney's Office,
Southern District of Georgia (United States Attorney).
Employee of Gilbert, Harrell, Sumerford & Martin, P.C. (partner).
Employee of Gilbert, Harrell, Sumerford & Martin, P.C. (associate).
Employee of Glynn County, Georgia (part-time Magistrate Judge).
Employee of United States District Court Judge Anthony A. Alaimo
(Judicial Law Clerk).
Employee of University of Georgia Business School (teaching
assistant).
Employee of King and Spalding Law Firm (summer law clerk).
Employee of Gilbert. Harrell Law Firm (summer law' clerk).
Employee of Varner, Stephens Law Firm (summer law clerk).
Employee of Educational Improvement Project (consultant).
Employee of Central Intelligence Agency (career trainee).
Employee of U.S. Representative Pat Swindall (R. GA) (campaign
worker).
Employee of Educational Improvement Project (consultant).
Employee of U.S. Representative Pat Swindall (R. GA) (press
secretary).
7. Military Service : Have you had any military sendee? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
I have never served in the military.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Law School Honors and Awards:
Isaac Meinhard Award for maintaining highest academic average throughout all
three years of law school;
Order of the Coif;
Georgia Law Review : Managing Editor (1989-90)
Editorial Board (1988-89);
Honor Court: Elected Chief Justice ( 1 989-90)
Elected Justice (1987-88 and 1988-89);
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Judge Newell Edenfield School of Law Scholarship Recipient;
Donald P. Gilmore, Jr. Labor Law Award;
Multiple American Jurisprudence Prizes;
Teaching Assistant for School of Management, U.G.A. School of Business
Administration - 1990 Excellence in Teaching Award. (Part-time job while in law
school.)
Undergraduate Honors and Awards:
1985 First Honor Graduate (4.0 gpa);
Jasper Dorsey Outstanding Senior Female of the Year;
Jasper Dorsey Outstanding Sophomore Female of the Year;
Phi Beta Kappa;
Omicron Delta Kappa;
Mortar Board;
Blue Key;
Blue Key/Tucker Dorsey Memorial Scholarship;
Young Alumni Council President’s Award;
Alpha Chi Omega Sorority - President 1985.
9, Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
Attorney General’s Advisory Subcommittee on White Collar Crime (2005-2006),
Subcommittee on Cybercrime (2006);
United States District Court Advisory Committee, Southern District of Georgia (1999-2004)
(2004-Present, attend as U.S. Attorney);
United States District Court, Southern District of Georgia, Federal Courthouse Security
Committee (2004-Present);
Georgia Bar Association (1990-Present):
Judicial Evaluation Committee (2003-2004)
Disciplinary Review Panel (200 1 -2004)
Vice-Chairman (2003-2004);
Brunswick/Glynn County Bar Association (1990-2004):
1995 — President
1994 — - Vice President
1993 — Treasurer
1992 — Secretary;
American Bar Association - Litigation Section:
1 990-Present,
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10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
Frederica Presbyterian Church;
Georgia Bar Association;
American Bar Association;
University of Georgia Alumni Society;
Sea Island Club (social club, does not discriminate);
Judic ial Invitational (social golf club, does not discriminate);
Butler Plantation Home Owners’ Association (does not discriminate).
11, Court Admission : List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
United States Eleventh Circuit Court of Appeals (August 4, 1993 -Present);
United States District Court for the Southern District of Georgia (June 5, 1991-Present);
Georgia Supreme Court (May 1 1, 1992-Present);
Georgia Court of Appeals (January 15, 1992-Present);
Georgia State Bar (June 4, 1991 - Present).
There have been no lapses in my memberships.
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of ail speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
1 have spoken at numerous continuing legal education seminars and many civic
organizations in my community. None of those speeches has been published that I know
of. I have authored one guest editorial on the Patriot Act that appeared in the local
newspaper, Savannah Morning News: “The Patriot Act’s Actual Benefits Outweigh any
Hypothetical Harms”, July 19, 2005. It also appeared in The Augusta Chronicle on July
20, 2005: “Benefits Outweigh Supposed Harms”.
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13. Health : What is the present state of your health? List the date of your last physical
examination.
I am in excellent health. My last physical examination was on May 1 1 , 2006.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
I served as part-time Magistrate Judge of Glynn County Magistrate Court from June 1998
to February 2000. I was appointed to that position. In that capacity, I reviewed weekend
arrest and search warrant requests, conducted preliminary probable cause hearings and
presided over bond revocation hearings. I also heard civil disputes which fell within the
monetary jurisdictional limit of the Magistrate Court. I believe at that time the County
Magistrates were limited to considering civil cases with no more than $15,000 in dispute.
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
As a Glynn County Magistrate, none of my decisions was reported, nor, to my
knowledge, were any reversed.
16. Public Office : State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
I served on the Georgia Board of Public Safety. I was swom in to office in November of
2003. I was appointed to that position by the Governor of Georgia. I resigned in order to
serve as United States Attorney. I currently serve as United States Attorney for the
Southern District of Georgia. I was swom in to office in July of 2004. I was appointed
to that position by the President. 1 have never run for public office.
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
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1. whether you served as clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
Yes. I served as a law clerk to Judge Anthony A. Alaimo, United
States District Court, Southern District of Georgia, from August
1990 through August 1991.
2. whether you practiced alone, and if so, the addresses and
dates;
I did not practice alone.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
Department of Justice
United States Attorney’s Office
Southern District of Georgia
100 Bull Street
Savannah, Georgia 31401
United States Attorney - July 2004 - Present.
Gilbert, Harrell, Sumerford & Martin, P.C.
777 Gloucester Street, Suite 200
Brunswick, Georgia 3 1 520
Partner, 1995 - July 2004.
Associate, August 1991 - December 1994;
Glynn County, Georgia
Glynn County Magistrate Court
Brunswick Judicial Circuit
Glynn County Courthouse
701 H Street
Brunswick, Georgia 31520
Part-time Magistrate Judge, 1998-2000.
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
My private law practice consisted of a general trial practice. I
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enjoyed litigating a wide variety of cases including criminal and
civil matters, primarily in federal court. The nature of my role in
cases has changed since becoming United States Attorney.
Whereas in private practice I would be the one carrying out
various tasks — taking depositions, selecting juries, cross-
examining witnesses, and drafting briefs — as United States
Attorney, I have been privileged to occupy a decisional role for
each case and the policy-making role for the office in general. I
make the final determination in every case as to which defendants
are included in each indictment presented to the Grand Jury and
which are not. Similarly, I make the final determination as to
which charges should be presented to the Grand Jury. I review
and, when appropriate, revise every appellate brief which leaves
the office. Additionally, I collaborate with the Assistant U.S.
Attorneys on case strategy and briefs in non-routine cases.
However, as United States Attorney, I no longer participate in the
trial and jury selection phases of the cases.
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
My typical private practice clients were commercial enterprises in
the Southern District of Georgia. As a lawyer in a relatively small
town, I did not develop an overly specialized practice. My trial
experiences included products liability, employment law, medical
malpractice, white collar crime and death penalty cases.
As United States Attorney, I have only one client, the United
States of America. We represent the United States in civil disputes
throughout the Southern District. Our primary role is to prosecute
federal crimes. Priority issues include anti-terrorism and
prosecution of gun crimes, drug violations, healthcare fraud and
white collar crime.
c. 1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
I have appeared in Court frequently, and this has not varied.
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2. What percentage of these appearances was in:
(a) federal courts: 75%.
(b) state courts of record: 25%
(c) other courts.
I appeared in Magistrate Court weekly when I served as a
part-time Magistrate Judge from 1998-2000.
3. What percentage of your litigation was:
(a) civil: 75%.
(b) criminal: 25%.
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
Seventeen cases tried to verdict: Three cases, sole; five cases,
chief; nine cases, co-counsel.
5. What percentage of these trials was:
(a) jury; 95%.
(b) non-jury: 5%.
18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
(1) Chicago Tribune v, Bridgestone/Firestone. Inc, and Van Etten v. Bridgestone/
Firestone, inc. The Van Etten case began as a wrongful death action filed by the
parents of a University of West Virginia football player who was killed when his
Ford Explorer rolled over on the highway. The parents alleged that the Firestone
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tires on the vehicle were defective. I represented Firestone. I was an active
participant in all phases of the litigation including Court hearings and discovery. The
case eventually settled just prior to trial.
After the case settled, news agencies filed pleadings seeking to intervene in order to
unseal certain discovery documents held under seal pursuant to a Court-issued
protective order. I presented oral argument on Firestone’s behalf arguing that the
seal should stay in place. The District Court ordered that the records be unsealed. I
was able to obtain a stay preserving the status quo pending an expedited appeal to the
Eleventh Circuit Court of Appeals.
Following oral argument, the Eleventh Circuit Court of Appeals reversed and
remanded the case to the District Court. Following the remand, the media dismissed
their requests, and the records were never unsealed. The case led to two reported
decisions: Chicago Tribune Co. v. Bridgestone/Firestone. Inc. . 263 F.3d 1304 (1 1 th
Cir. 2001) and Van Etten v. Bridgestone/Firestone. Inc. . 1 17 F. Supp. 2d 1375 (S.D.
Ga. 2000).
(a) Date of representation was from mid-1998 to mid-2002.
(b) The case was filed in the United States District Court for the Southern
District of Georgia. Judge Anthony A. Alaimo was the presiding Judge, and
Magistrate Judge James E. Graham addressed discovery matters.
(c) My co-counsel was:
Alfred B. Adams, III
Holland & Knight
One Atlantic Center, Suite 2000
1201 West Peachtree Street, Northeast
Atlanta, Georgia 30309-3400,
(404) 898-8117
The Plaintiffs were represented by:
Daniel B. Snipes
James B. Franklin
Franklin, Taulbee, Rushing, Snipes & Marsh,
12 Siebald Street (30458)
Post Office Box 327
Statesboro, Georgia 30459
(912) 764-9055
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Rowe Brogdon
203 Donehoo Street (30458)
Post Office Box 189
Statesboro, Georgia 30459
(912) 764-6668
Mark J. Smith
Littky, Smith
Citizens Building, Suite 800
105 South Narcissus Avenue
West Palm Beach, Florida 33401
(800) 519-1965
Ford Motor Company was a co-defendant and was represented by:
Charles K. Reed
McKenna, Long & Aldridge
Suite 5300, 303 Peachtree Street, Northeast
Atlanta, Georgia 30308
404-527-4000
Once the appeal was lodged, my co-counsel was:
Dorothy Kirkley
Kirkley & Hawker, LLC
999 Peachtree Street, Suite 1640
Atlanta, Georgia 30309
(404) 892-8781
Attorneys representing other parties include:
Lee A. Mickus, Esq.
Wheeler, Trigg & Kennedy, P.C.
1801 California Street, Suite 3600
Denver, Colorado 80202
(303) 224-1800
Arnold C. Young, Esq.
Hunter, Maclean
200 East Saint Julian Street
Savannah, Georgia 31401
(912) 236-0261
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D. Alan Thomas, Esq.
Huie, Femambucq & Stewart, LLP
Three Protective Center
2801 Highway 280 South, Suite 200
Birmingham, Alabama 35223
(205) 251-1 193
Robert L. Rothman, Esq.
Roger A. Chalmers, Esq.
Amall Golden Gregory LLP
171 17 th Street, Northwest, Suite 2100
Atlanta, Georgia 30363-1031
(404) 873-8500
Jerome L. Kaplan, Esq.
Walter H. Bush, Esq.*
Stone & Baxter, LLP
Suite 800, Fickling & Co. Building
577 Mulberry Street
Macon, Georgia 31201
(478) 750-9898
*Botk Mr. Kaplan and Mr. Bush were located at 201 Second Street
in Macon at that time. Their phone number was (9 1 2) 745-3344.
Mr. Kaplan is now a partner of Stone & Baxter. I am not sure
where Mr. Bush is currently located.
J. Thomas Whelchel, Esq.
Whelchel, Brown, Readdick & Bumgartner
(nka Brown, Readdick, Bumgartner, Carter, Strickland & Watkins)
5 Glynn Avenue
Brunswick, Georgia 31520
(912) 264-8544
Mary-Rose Papandrea, Esq.
Kevin T, Baine, Esq.
Williams & Connolly, LLP
725 Twelfth Street, Northwest
Washington, D.C. 20005-5901
(202) 434-5000
Lisa M. Raleigh, Esq.
Keith P. Vanden Dooren, Esq.
Office of the Attorney General
11
The Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
(850) 414-3600
Earl W. Gunn, Esq.
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
950 East Paces Ferry Road, Suite 3000
Atlanta, Georgia 30326
404-876-2700
Gibbons v. Glvnn-Brunswick Memorial Hospital Authority, et al. and Mulligan v,
Glynn-Brunswiek Memorial Hospital Authority, et al. These were two separate
actions filed in two separate years that revolve around the same core facts. I,
along with my partner, Wallace E. Harrell, defended our local hospital in these
actions. The suits challenged an agreement the hospital entered into with a local
anesthesia group. The Plaintiffs alleged anti-competitive practices, tortious
interference with business relations and other restraint of trade claims. I actively
participated in every phase of the litigation of each case, including writing a
motion and brief for summary judgment in each case. The summary judgments
were affirmed on appeal. Each resulted in a reported decision: Mulligan v.
Glvnn-Brunswick Memorial Hospital Authority . 264 Ga. App. 39, 589 S.E.2d 851
(2003) and Glvnn-Brunswick Memorial Hospital Authority v. Gibbons 243 Ga.
App. 341, 530 S.E.2d 736 (2000). The co-defendant anesthesia group was not
able to secure summary judgment in either case. Dr. Gibbons received a million-
dollar jury verdict against the anesthesia group, and Dr. Mulligan’s case will
proceed to trial against the anesthesia group at some point in the near future.
(a) Date of representation in the Gibbons matter was from late 1996 to early
2000; date of representation in the Mulligan matter was from late 1999 to
mid-2003.
(b) The cases were pending in Glynn County Superior Court. Judge E. M.
Wilkes, III, presided over the Mulligan action, and Judge Amanda F.
Williams presided over the Gibbons action.
(c) My co-counsel was my partner, Wallace E. Harrell.
Plaintiff Gibbons was represented by:
Anthony L. Cochran
Chilivis, Cochran, Larkins & Bever, LLP
3127 Maple Drive, Northeast
Atlanta, Georgia 30305-2503
(404)233-4171
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John J. Ossick, Jr.
Post Office Box 1087
Kingsland, Georgia 3 1 548
(912)729-5864
Plaintiff Mulligan is represented by:
Kevin Gough, Esq.
904 “G” Street
Post Office Box 898
Brunswick, Georgia 31521-0898
(912) 262-0565
John C. Butters
7616 Richard Moss Lane
Suches, Georgia 30572
(404) 872-5693
Alta Anesthesia was represented in the Gibbons action by:
Roy E. Paul
Bouhan, Williams & Levy
447 Bull Street
Savannah, Georgia 31401
(912) 236-2491
Alta Anesthesia is represented in the Mulligan action by:
John E. Bumgartner
Bradley J. Watkins
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins
5 Glynn Avenue
Brunswick, Georgia 31520
(912)264-8544
(3) Pamela L. Lewis v. Dale Sapp and City of Baxley . This was a sexual harassment
suit in which I was sole counsel for Defendant Dale Sapp. Ms. Lewis accused my
client of multiple, egregious acts of physical and verbal sexual harassment. The
jury rendered a defense verdict.
(a) Date of representation was early 1 996.
(b) The case was filed in the United States District Court for the Southern
District of Georgia. Judge Anthony A. Alaimo was the presiding Judge.
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(c) The Plaintiff was represented by:
Martha F. Dekle
Post Office Box 1644
Brunswick, Georgia 31520
(912)261-8980
The City of Baxley was represented by:
Terry L. Readdick
G. Todd Carter
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins
5 Glynn Avenue
Brunswick, Georgia 31520
(4) Mosher v. State . This was a death penalty case in which the accused was charged
with murdering a fellow traveler. I represented the Defendant. Our main defense
focused on Mr. Mosher’s diminished mental capacity at the time of the death. 1
was responsible for presenting the mental capacity defense. The jury convicted
Mr. Mosher but declined to impose the death penalty. The case is reported as
Mosher v. State. 268 Ga. 555, 491 S.E.2d348 (1997).
(a) Date of representation was late-1995 until early-1997.
(b) The case was tried in Glynn County Superior Court before Judge Amanda
F. Williams.
(c) My co-counsel was:
Randall M. Clark
1708 Ellis Street
Brunswick, Georgia 3 1 520
(912) 264-6662
The State was represented by:
Keith Higgins, Assistant D.A.
Glynn County District Attorney’s Office
Glynn County Courthouse
701 H Street, 3 rf Floor
Brunswick, Georgia 31520
(912) 554-7200
(5) William James Morgan, et al. v. Hercules Incorporated . Civil Action No. CV293-
149. This was an environmental contamination dispute brought by a group of
homeowners who live near a landfill where toxaphene by-products were buried. It is
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a significant case in my community which is home to multiple paper mills, chemical
companies and other manufacturing entities. It is one of the few environmental
contamination cases in the Brunswick area which has progressed to the jury verdict
stage. I represented the Defendant, Hercules Incorporated. I actively participated in
the pretrial and trial proceedings including cross-examining some of the Plaintiffs.
Plaintiffs were seeking millions of dollars in actual damages in addition to
punitive damages. The jury returned a verdict in the $250,000 range.
(a) Date of representation was 1993-95.
(b) The case was filed in the United States District Court for the Southern
District of Georgia. Judge Dudley Bowen presided over the case.
(c) Lead Counsel for the defense was:
J. Kevin Buster
King & Spalding
1 1 80 Peachtree Street
Atlanta, Georgia 30309-3521
(404) 572-4600
Co-counsel included my partner, Wallace E. Harrell.
Plaintiffs were represented by:
John C. Bell, Jr., Esq.
Bell & James
945 Broad Street, 3 rd Floor
Augusta, Georgia 3090 1
(706) 722-2014
Eugene Highsmith
1321 Egmont Street
Brunswick, Georgia 31520
(912) 265-6000
Robert P. Killian
Killian & Boyd, P.C.,
506 Monk Street
Brunswick, Georgia 31520
(912)265-5063
(6) Gregory Britton v. Southeast Georgia Regional Medical Center . This was a
discrimination suit in which the Plaintiff alleged that he was fired because of his race
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and gender. I was lead counsel for the Defendant The jury returned a defense
verdict. The case was appealed to the Eleventh Circuit. The defense verdict was
affirmed in an unpublished decision, Civil Action No. CV 299-324, 1 1th Circuit
Docket No. 00-16142D.
(a) Date of representation was late 1999 to mid-2001.
(b) The case was filed in United States District Court for the Southern District
of Georgia and was presided over by Judge Anthony A. Alaimo.
(c) My co-counsel was my partner, Wallace E. Harrell.
The Plaintiff was represented by:
James A. Yancey, Jr.
704 G Street
Brunswick, Georgia 31520-6749
(912) 265-8562
Linell A. Bailey
formerly of 1617 Union Street
Brunswick, Georgia 31520
To my knowledge, Mr. Bailey no longer practices law. I believe he may
be deceased. The last known address and telephone number listed in the
Brunswick City Directory is:
132 Timber Ridge Drive
Brunswick, Georgia 31525
(912) 261-0261
(7) John C. Richards v. Moore-Sapp Investors and City of Brunswick. Georgia . This
was a personal injury action. I was lead counsel for the City of Brunswick.
Although the underlying facts of the case are not unusual, the case stands out as
significant in my practice from a procedural standpoint. At the time I was contacted
to represent the City, the City had already been in default for quite some time. After
multiple motions, briefings and hearings, the Judge allowed the City of
Brunswick to Answer but denied its Motion for Summary Judgment. We obtained
a Certificate of Immediate Review and were permitted to appeal the denial of
summary judgment. The Court of Appeals reversed the denial of summary
judgment. The case is reported as Moore-Sapp Investors v. Richards . 240 Ga.
App. 798, 522 S.E.2d 739 (1999).
(a) Date of representation was mid- 1 997 to late- 1 999.
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(b) The action was pending in Glynn County Superior Court before Judge
James R. Tuten, Jr.
(c) The Plaintiff was represented by:
James A. Yancey, Jr.
704 G Street
Brunswick, Georgia 31520-6749
(912) 265-8562.
The Defendant Moore-Sapp was represented by:
John E. Bumgartner
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins
5 Glynn Avenue
Brunswick, Georgia 31520
(912) 264-8544
(8) Dewberry v. Atlanta Gas Light Company . In this case, I was co-counsel for Atlanta
Gas Light Company. The Plaintiff, Mr. Dewberry, alleged age and disability
discrimination in his termination. Mr. Dewberry had filed for bankruptcy during
the same timeframe he filed his EEOC charge. We obtained his bankruptcy
petition and learned that he had not listed his discrimination claim as a possible
asset. Mr. Dewberry sought to reopen his bankruptcy case to list the asset.
Following oral argument and two court rulings, the action was eventually
dismissed by the District Court. The Bankruptcy Court’s ruling is reported as In
re Dewberry . 266 B.R. 916 (S.D. Ga. 20011.
(a) Date of representation was early 2001 to late 2001 .
(b) This case originated in the United States District Court, Southern District of
Georgia, before Judge Anthony A. Alaimo. The United States Bankruptcy
Judge involved was Judge Lamar Davis.
(c) My co-counsel were:
Weyman Johnson
Rebecca Farber
Paul Hastings, LLP
600 Peachtree Street, Northeast, Suite 2400,
Atlanta Georgia 30308-2222
(404)815-2209
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The Plaintiff was represented by:
Stephen A. Land, Esq,
Land & Keon, LLP
1 1 5 Perimeter Center Place
Suite 1080 - The South Terraces
Atlanta, Georgia 30346
(770)350-8581
James B. Durham, Esq.
Durham, McHugh & Duncan, P.C.
777 Gloucester Street, Suite 300
Brunswick, Georgia 31520
(912)264-1800
Bankruptcy attorneys involved were:
William Orange, III, Esq.
1429 Newcastle Street
Brunswick, Georgia 31520
(912) 267-9272
R. Michael Souther
1520 !4 Newcastle Street
Brunswick, Georgia 31520
(912)265-5544
(9) John Tuten v. St. Mark’s Episcopal Church and City of Brunswick . This was an
action to enjoin a property exchange agreed to by the church and the city, I
represented the church and served as lead counsel, arguing the case in the Georgia
Supreme Court. The city agreed to give the church a tract of land situated behind
the church in exchange for a nearby parcel of church property. Mr. Tuten sought
to enjoin the exchange as a violation of a state statute governing municipal land
exchanges and as inconsistent with historic preservation goals, for the land in
question was listed as a city park on General Oglethorpe’s original plan for the
City of Brunswick. The Judge granted summary judgment to the church and the
city. That decision was reversed on appeal. Not long after the Georgia Supreme
Court issued its decision, the relevant statute was amended. Following the
amendment, the church and the city were able to move forward with the property
exchange. The case is reported at Tuten v. City of Brunswick . 262 Ga. 399, 41 8
S.E.2d 367 (1992).
(a) Date of representation was 1992 to 1996.
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(b) The case was pending before Judge Amanda F. Williams in Glynn County
Superior Court.
(c) The Plaintiffs were represented by:
George M. Rountree
708 G Street
Brunswick, Georgia 31520
(912) 264-6606
The City of Brunswick was represented by:
Eugene Highsmith
1321 Bgmont Street
Brunswick, Georgia 31520
(912) 265-6000
( 1 0) Newcastle Construction, Inc, v. Bayou Fleet. Inc., et al. . Civil Action No. CV203-
034.
I was lead counsel for the Plaintiff in this construction dispute involving the
renovation of an historic building in the City of Brunswick. I represented the
contractor who had substantially completed the project yet had not been paid for
much of the work. We tried the case in Federal Court in 2004. The jury awarded
our client the money he was due plus attorneys’ fees.
(a) Date of representation was early 2003 to March 2004.
(b) The case was filed in United States District Court for the Southern District
of Georgia and was presided over by Judge Anthony A. Alaimo.
(c) My co-counsel was my Associate, James L. Roberts, IV.
The Defendants were represented by:
Roy E. Paul
Walter C. Hartridge
Bouhan, Williams & Levy
447 Bull Street
Savannah, Georgia 31401
(912) 236-2491
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
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did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
In Private Practice : As a lawyer who primarily represented corporate defendants, I
consider many of my most significant victories to be instances where I have been able to
guide my clients through challenging events and yet avoid litigation. An important part
of my practice consisted of clients and others seeking legal advice in strategic,
employment and commercial decisions. I am honored to have developed, at a relatively
early stage in my career, the trust and confidence of a number of people in my
community who sought my advice on critical business matters and when their own family
members needed legal guidance. I have more than twenty reported decisions to my name
and carried one of the largest case loads in my firm.
In addition to my work with clients, I have devoted significant time to State Bar
Activities, culminating with my work on the Disciplinary Review Board. I also served
on the State Bar Statewide Judicial Evaluation Committee.
Furthermore, I participated in community outreach programs involving the legal
professional. I have taught paralegal courses at our Community College and served on
our Hospital’s Ethics Board and my church’s Permanent Judicial Commission.
As United States Attorney ; The most fulfilling work I have ever done is my service as
United States Attorney. I have never worked as hard or brought as much focus to a job as
I have since becoming United States Attorney, more so than in law school, more so than
as a law clerk, more so than in private practice. Of course, our office works as a team.
While I may be the captain, my most valuable contributions are in instituting strategic
planning and motivating employees. The advancements I deem significant that our team
has accomplished include the following:
This past year (2005), we initiated the highest number of cases in the recent history of the
office. Not only was the raw number of cases high, but also the complexity of those
cases reflects positive changes as evidenced by the nature of the charges, the number of
the counts and the magnitude of the conduct alleged. We successfully concluded cases
which have had a statewide impact.
In a year of national budget reductions and cutbacks, we were permitted to hire an
additional prosecutor. Attorneys and staff show increased pride, involvement and
motivation in their role in the office. In both 2004 and 2005 the Southern District of
Georgia was the only United States Attorney’s Office in the state to have an employee
receive a Director’s Award for outstanding performance from EOUSA. We have made a
commitment of time and resources to all parts of the District, expanding federal
prosecutorial presence in some of the smaller areas of the District.
20
306
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
I have a retirement account with Thrift Savings Plan. I receive a salary as United States
Attorney, which will cease when I leave the Department of Justice.
I have ownership interests in two entities: Vandelay, LLC and 777 Gloucester, LLC.
Those entities have not been income-producing. If either shows a profit, I would receive
my pro rata share. Vandelay, LLC, owns a percentage of an undeveloped tract of land
near Interstate 95 in Glynn County, Georgia. 777 Gloucester, LLC, owns an office
building in Brunswick, Georgia-.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
Upon becoming a District Court Judge, I will run an immediate conflict check to
determine whether any active matters will present a conflict or the appearance of a
conflict of interest. In the event of a potential conflict of interest, I will consult with the
appropriate ethics officials.
The only areas of which I am aware that are likely to present conflicts are any matters
that are currently being handled by the United States Attorney’s Office.
In the event of any conflict or appearance of a conflict of interest, I would remove myself
from consideration or handling of the matter and follow all appropriate guidelines,
including the Code of Conduct for United States Judges.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
No.
21
307
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached financial disclosure report.
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached net worth statement and schedules.
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I was on the Bush 2000 Glynn County Steering Committee. I served in that capacity in
2000 and in 2004. I have been active in some state and local campaigns including
Johnny Isakson’s campaign for Senate, Mack Mattingly’s 2000 Senate campaign. Sonny
Perdue’s 2002 Gubernatorial campaign and Jerry Keen’s campaign for State
Representative. I was a paid campaign worker for U.S. Representative Pat Swindall in
1986.
22
308
FINANCIAL DISCLOSURE REPORT R 'P»" R 'i« lr » l “S’ <* “““
in Government Act of 1978
NOMINATION FILING (5 u&c. tpp. §§ m-ui)
1. Person Reporting (Last name. First name. Middle initial)
Wood, Lisa G
2. Court or Organization
U.S. District Court, GA-S
3. Date of Report
6/16/2006
4, Title (Article HI Judges indicate active or senior status;
magistrate judges indicate foil- or part-time)
District Court Judge - Nominee
5. RcportType (check appropriate type)
(S) Nomination, Date 6/12/2006
O initial Q Annual (j) Final
6. Reporting Period
1/1/2005
to
S/31/2006
7. Chambers or Office Address
U.S,Attome/s Office, SDGA
100 Bull Street
Savannah, Georgia 31401
8. On the basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
Reviewing Officer Date ... ..
1
IMPORTANT NOTES: The instructions accompanying this form must b
where you have no reportable information. Sign on last page.
followed. Complete all parts, checking the NONE box for each part
1
I. POSITIONS. (Reporting individual only, sec pp. 9-13 of filing instructions)
D NONE - (No reportable positions.)
POSITION NAMB OF ORGANIZATION/ENTITY
1. United States Attorney U.S. Department of Justice
United States Attorney's Office, Southern District of Georgia
Trustee Trust #1
AO-10
Rev, 1/20O4
I. Partner Gilbert, Harrell, Sumcrford & Martin, P.C,
4. Board Member Georgia Board of Public Safety
Council Member University of Georgia Law School Alumni Council
H. AGREEMENTS. (Reporting individual only, see pp. 14-16 of filing instructions)
D NONE - (No reportable agreements.)
BA3S EARIES^-TF-SMS
2004 Gilbert, Harrell, Sumerford & Martin, P.C. - Agreement for receipt of accounts receivable received during 2004
for legal services performed prior to Aug. 2004.
309
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Wood, LisaG
6/16/2006
HL NON-INVESTMENT INCOME. (Reporting individual and spouse; sec pp. 17-24 of filing instructions)
A. Filer's Non-Investraent Income
D NONE * (No reportable non-investment income.)
I.
2004
SOURCE AND TYPE GROSS INCOME
(yours, not spouse's)
Gilbert, Harrell, Sumerford & Martin, P.C. - law firm compensation for services $136,795.07
performed from January through July 2004.
(Additional Non- Investment Income was received as United States Government
salary for services as United State Attorney.)
B. Spouse's Non-Investment Income - (If you were married during any portion of the reporting year, please complete this section. Dollar amount
not required except for honoraria.)
Si NONE - (No reportable non-investment income.)
EMI SO.UR.C.E. AND TYPE
IV- REIMBURSEMENTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children. See pp, 25-27 of instructions .)
O NONE * (No such reportable reimbursements.)
I, Exempt
DESCRIPTION
310
FINANCIAL DISCLOSURE REPORT
V. GIFTS . (Includes those to spouse and dependent children. See pp. 28-31 of instructions.)
O NO?*® ■ (No such reportable gifts.)
SOURCE 2Eg£ftffU-QN VALUE
1. Exempt
VI. LIA BILITIES. (Includes those of spouse and dependent children. Scepp. 32-34 of instructions.)
D NONE - (No reportable liabilities.)
SBEggm DESCRIPTION VALUE CODE
1. SunTrust Bank, Brunswick, GA 1 of 10 Guarantors on loan for 777 Gloucester. IXC, an office building in PI
Brunswick, OA
311
FINANCIAL DISCLOSURE REPORT
Page 1 of 3
Name of Person Reporting
Date of Report
Wood, LisaO
6/16/2006
VH. INVES TMENTS and TRUSTS “ incorae, value, traascations (includes those of tbs spouse ami dependent children. See pp. 34-57 of filing instructions.)
A.
Description of Assets
(including trust assets)
B.
Income during
reporting period
C
Gross value at end of
reporting period
D.
Transactions during reporting period
| If not exempt from disclosure
Place “(X)" after eadi asset exempt
from prior disclosure
Amount
Code I
(A-H)
Type (eg,
«Kv. rent or
hit)
Value
Method
Code!
(Q-W)
Type (e-g.
buy, sell,
redemption)
(2)
Dale:
Month -
Day
(4)
Code
WA-
Identity of
buyer/seller
(if private
transaction)
O NONE (No reponable Income, assets, or transactions)
1.
SunTrust Money Market Account, Brunswick, CIA
A
Interest
L
H
■
■
■
♦EXEMPT*
2.
Oglethorpe Bank Money Market Account,
Brunswick, GA
A
Interest
L
T
■
■ ■
3.
Sea Island Credit Union Savings Account, Sea
Island, GA
A
interest
H
IH
■
■
4.
Bank of America Investment Services Account;
G.E. Stock
A
Dividend
M
m
1
B
(Con I'd) Home Depot Stock
H
Dividend
j
T
6.
(Confd) Johnson & Johnson
Stock
A
Dividend
j
H
1 1 ■
7.
Georgia Lawyers Insurance-Stock (Liability ins.)
Faycttevil
A
Dividend
j
H
a
Oglethorpe Bank Stock (Bank), Brunswick, GA
A
Dividend
j
T
9.
Bank of Amer. Investment Svcs; Gainesville A Hall
Co. Bond
D
D
T
10.
Bank of America IRA (Cash)
Brunswick, GA
A
Interest
j
T
11.
Bank of America Checking Accounts, Brunswick,
GA
A
Interest
j
T
12.
Associated Credit Union Savings Account. Atlanta.
GA
A
Interest
j
T
13.
Utah Edu- Sav. Plan: Vanguard Inst. Index Fund
(S&P 500)
A
interest
j
T
14.
13.64% Vandelay, LLC - undeveloped land in
Glynn Co.
A
Interest
K
T
IS.
1 of 10 owners of 777 Gloucester, LLC, an office
bldg.
A
interest
III
HI
16.
TRUST #1 (see breakout below):
17.
(Contid) ADP Stock
A
Dividend
J
T
(8.
(Cont’d) Bank of America Stock
A
Dividend
■1
■1
B -Sl.OOi.&SW 0-52,30145,000 D -55.001415,000 E -515.001450.000
0 - 5 1 00.00 1 4 1000.WD Ml -Slv00O.OM45.OO0.OOO H2 - More than 55.000.000
K -S:5J»l4s0^00O L -J50.0014100.000 M -1100.0014250,000
O - J500,0tjj4l,000;000 , PI - St. 000.001 43.000.000 1*2 -IS.000.001-S23.000.000
PS -J24O0O.M145O.O0O.0OO IW-SMore than 550, OXi.000
IVahm Method Codes Q -Appraisal , R - pod (Roat Estate Only) S -AaaassnwnK T -CaabMota
(Sc* Column C2) U -BaokValue ' V. -Other W -*« Estimated
(See Cohanna Bl and D4) F - J50.0014100,000
2. ValoeCodes. 1 -51 5.00(1 ariosi
(See Columns Cl and IM) N - 5250,0004500,000
312
FINANCIAL DISCLOSURE REPORT
Page 2 of 3
VH INVESTMENTS and TRUSTS - income, vilae, transcstions (iocludes those of the tpoase and dependent children. See pp. 34-57 of filing instructions.)
19.
20 .
21.
22 .
23 .
24.
25 .
26 .
27.
28.
29 .
30.
31 .
32.
33.
34.
35 .
A.
Descripticsi erf Assets
(including trust assets)
Place "(X)' after each asset exempt
from prior disclosure
(Confd) Bristol-Myers Stock
(Coat’d) Cinergy Corp. Stock
(Confd) General Electric Stock
(Cant'd) Citigroup Stock
(Cant'd) Chevron Texaco Stock
(Confd) Conoco-Phillips Stock
(Confd) Cisco Systems Stock
(Confd) Conagra Foods Stock
(Confd) Dell Stock
(OoDfd) Dupont Stock
(Confd) Exxon Mobile Stock
(Confd) Fannie Mae Stock
(Confd) Gcnunie Parts Stock
(Confd) Home Depot Stock
(Confd) Intel Stock
(Confd) Johnson & Johnson Stock
(Confd) Kellogg Stock
Amount Type (e.g. Value Value
Code 1 div. rent or Code 2 Method
(A-H) inf.) (J-P) CodeS
(Q-W)
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
Dividend
1. UKWpaioCodei A -$l ; 0C0orl«* B - *1.001-^2.500 ! . C; -52.50(45,000 . D -JS.flai41J.000 " E -515.001450.000
(S«eC(*«w»Bl TO aCH) f rS50.00l4l06.W0. O -5100JW14I.000.000 HI - 5l.000.001-5J.000.000 IQ - More liuta JS.OOO.OOC
2. V»lireCodra: ) - $15,000 tr lew K -$15,001450,000 L -550,0014100,000 M -5100.0014250.000
(SeeColtmmtClindDS) K -$250.0004500.000 O -S$00,00541.00c.00f) PI -51,000,00145.000,000 P2 -JJ.000,001425.000.000
P3 - J2J.OOQ^I450.H>0.000 •• , rt -5Mctttt« $50,006^ ; i
3. Value Method Cfidet Q -Apjsiaai " R -C^tOUalBitiWpeJy) - S -AiseSameOt T -Cash/MvkeJ
<SeeCeluznuC2) XS -BeokVtfue . V - Other f. W - Esthfflwd ' ’
313
FINANCIAL DISCLOSURE REPORT
Page 3 of 3
Name of Person Reporting
Date of Report
Wood, LisaO
6/16/2006
VH. INVESTMENTS and TRUSTS - income, vriae, trenscitiotu (nchides those of foe tpoosc and dependent children. Sec pp. 34-57 of Sing inSroco-ms.)
A.
Description of Assets
(including trust assets)
B.
Income during
reporting period
C.
Gross value at end of
reporting period
O.
Transartwns during reporting period
(1)
Amount
Code 1
(A-H)
(2)
Type (e.g,
div. renter
tut.)
0)
Value
Code 2
(W)
(2)
Value
Method
Code 3
1G-W)
(1)
Type (e-g.
buy, tell,
merger,
redemption)
Place *(X) n after each asset exempt
from prior disclosure
(2)
Dale:
Month -
Day
(3)
Value
Code 2
(MO
(4)
Gain
Code
MA*
37.
(Cont'd) Oracle Stock
A
Dividend
J
T
■
■
■
38.
(Contfd) Pfizer Stock
A
Dividend
}
T
■
■
■
■
39.
(Cont'd) Sara Lee Stock
A
Dividend
sa
H
■
■
■
40.
(Cont’d) Southern Company Stock
A
Dividend
■
H
■
41.
(Cont'd) Teco Energy Stock
A
Dividend
J
T
42.
(Cont'd) Travelers Stock (TAPA) PPTY
CASCRP
A
Dividend
J
T
43.
(Cont’d) United Technology Carp. Stock
(UTX)
A
Dividend
u
H
44.
(Confd) Verizon Communication Stock
A
Dividend
J
T
45.
(Cont'd) Wal-Mart Stock
A
Dividend
}
T
46.
(Cont'd) Weingarten Realty Stock
B
Dividend
K
T
47.
(Confd) General Motors Bonds
m
Interest
L
T
48.
(Cont'd) Bank of America Bonds
B
Interest
K
T
49.
(Confd) Merrill Lynch Money Market
Account
A
Interest
J
T
SO.
(Confd) Oglethorpe Bank Stock (Bank)
A
Dividend
1
T
51-
(Confd) Atlantic Bank Checking Account
A
Interest
J
T
■1
i. Inaoia.'QAm Codes: A -J 1,000 diets :
(See Column* B1 and LM) f - JJO.OOMJQOjMO
it Vatae Codes:
B. -S1.00l«!3<«-' /
G. -ilOO, 001 -11.000,000
K -su.ooj^w'ooo
: o >ssoo.oo>4i.<ioo.ooo
-S2.SOI-SJ.OOO .
D -JJ.00l-jl5.a00
. 1)1 -II. 000,001 -SS, 000.000 H2 - Mote thin 15,000, 00|
L - J50.001-S100.000 M -S100.001-J2JO.000
E -JIJ.Ml-JJO.WO
I * SI 5,000 or lew
(See Columns Cl *ndD3) N - JUO^OO-S^OOQ - 0 : - SS0O,OO»^l.<IOO,OO0 PI * SI. 000,002*55.000.000 P2 - 5J.000.opt-S25.000.000
to --J2J.600.001*SSO,060;<00 - r P4 -JMcre&miW.OOO.MO '
j . Vafc* Method Codes Q -Appraisal J : 'R • ;* 0xt (&$*! Estate Qdy) S «As«ssriKiu . T -CashMatia
•fSeeC««oaC2) .'. U -S«ikVA» '■'} " ’ “af
314
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Wood, LisaG
6/16/2006
Vm. ADDITIONAL INFORMATION OR EXPLANATIONS M-.i-i.fKwn.>
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Wood, Lisa G
6/16/2006
IX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N.E.
Washington, D.C. 20544
315
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets {including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
316
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
GE
$ 3,478
Home Depot
4,230
Johnson & Johnson
5,922
Gainsville and Hall County, GA Municipal Bond
26,209
Columbia Cash Reserves
88,693
Total Listed Securities
128,532
Unlisted Securities
Oglethorpe Bank Stock
$ 11,700
Real Estate Owned
Personal residence 1 $ 1,978,000
Personal residence 2 225,000
Total Real Estate Owned 2,203,000
Real Estate Mortgages Payable
Personal residence $ 171,000
Contingent Liabilities: I am one of 10 guarantors on a $3,200,000 loan from SunTrust
Bank to 777 Gloucester, LLC.
Assets Pleged: My personal residence is security for my mortgage.
317
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
Throughout the duration of my private practice, I spent approximately one-half day a
week performing pro bono work. While in private practice, I spent significant time
performing free legal services for the YWCA. Much of this work was centered around
the after school and day care programs which serve many disadvantaged children in our
community. For two years, I co-chaired the Tribute to Women Leaders YWCA
fundraising event which secures funds to run the after school program. In addition to
these activities, I have worked in conjunction with our local school system as a mentor in
the middle school shadowing program, an interviewer in the middle school career day
exercises, and a Judge in the high school mock trial competition. Additionally, when in
private practice, I was appointed by the District Court to represent indigent defendants on
multiple occasions. Furthermore, when in private practice, I gave advice to numerous
low income individuals regarding civil matters and have not taken a fee. I served on the
State Bar of Georgia Disciplinary Review Panel and the State Bar of Georgia Judicial
Evaluation Committee. As United States Attorney, I speak to student groups and civic
organizations on a regular basis. I also enjoy serving as a judge in student mock trial
competitions. I take activities such as those listed above seriously, and they have been a
constant, significant part of my legal career.
In addition to my pro bono legal work, I am an Ordained Elder of the Frederica
Presbyterian Church. In that capacity, I have supported many community organizations
that help the disadvantaged. Prior to becoming the U.S. Attorney, I served on the
Permanent Judicial Commission of the Savannah Presbytery. Additionally, I served on
my community hospital’s Medical Ethics Board and was active in other community
organizations such as Safe Harbor Children’s Shelter and the Brunswick Port Society.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates -- through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
I do not belong and have not belonged to any such organizations.
23
318
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
Yes, there is a selection commission in Georgia.
Yes, I was recommended for nomination by the selection commission. The process
consisted of the following steps: I submitted an application to the selection commission
in Georgia. The selection commission interviewed me. I received a call from the White
House Counsel’s office informing me that I was one of three people who had been
recommended for nomination by the selection commission and the Georgia Senators. I
was intei-viewed by two members of the White House Counsel’s office and one person
from the Department of Justice. I received a telephone call from the White House
Counsel’s office informing me that the White House had decided to move forward with
my background investigation. Following my background investigation, I was notified
that I would be nominated. My nomination was submitted to the Senate on June 12,
2006.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this Ajudicial activism@ have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
24
319
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
District Court Judges should not engage in policy making. The Constitution
carefully balances the powers among the three branches of government. Respect
and humility in recognizing the Constitutional separation of powers is important.
The judiciary is not vested with the power to make law, nor is it the judiciary’s
role to execute the law.
District Court Judges must recognize the importance of precedent. It is their duty
to find and apply precedent, not look for ways to make it. Stare decisis is a
fundamental doctrine in American law. It provides the stability and continuity
that is a crucial feature of our system of justice.
Furthermore, District Court Judges must heed the jurisdictional limits imposed by
Article III, including the duty to hear only actual cases and controversies. District
Court Judges should ensure that the matters before them satisfy the appropriate
standing, ripeness and mootness requirements instead of attempting to issue
orders on abstract issues or hypothetical facts. Specifically, District Court Judges
should decide the cases properly before them according to the rule of law.
25
320
AFFIDAVIT
1/ Lisa Godfrey Wood , do swear that the
information provided in this statement is, to the best of my
knowledge, true and accurate.
7 \
ARY)' 0
(NOTARY)
MAURENE S.TAPLEY
Notary Public, Gbatham County, GA
My Commission Expires February 1 , 2009
321
Senator Coburn. Thank you.
Well, we will proceed with some questions now. I have a limited
number of questions for each of you. There will be no time contin-
gency in terms of how you answer them. They are fairly general
questions, but it will give me a feel and an opportunity to get to
know you a little bit better.
I am going to begin with Ms. Fischer, if I might. Your legal ca-
reer has really encompassed a broad mix of civil and legal work,
particularly focusing on trial work.
Would you share with us how your experiences have prepared
you to serve as a U.S. judge?
Ms. Fischer. Thank you, Mr. Chairman, for that question. As
you know from your review of my resume, I have been practicing
law in Western Pennsylvania, and also in West Virginia, I might
add, the last 30 years. I have covered a broad range of cases in
both State and Federal work. Early on I handled a number of civil
rights and employment cases, for example, in the Federal district
court.
I think that the mix of skills that I have learned, the ability to
look at cases, analyze the facts and then apply the law, I think I
can carry that into the judiciary, if I should be so fortunate. Fur-
ther, as it has been indicated, I have some training in mediation,
arbitration, and alternate dispute resolution. It would be my hope
to bring those skills to the table as well.
Senator Coburn. You just answered my next question. I actually
consider that to be a tremendous asset, because what that means,
as you recognize in mediation and alternate dispute resolution, is
you are a trusted advocate for fairness. I think that is a tremen-
dous compliment to you.
When we see 1,500 cases per judge, if they go to trial, that is an
impossibility in our judicial system today. So mediation, and actu-
ally the concept of reconciliation, reconciling two people apart or
two parties to a common denominator, is a key factor.
In your mind, of all the judges you have been in front of, what
are the qualities that you are most impressed with that makes a
good judge?
Ms. Fischer. First, Mr. Chairman, I would say that the judges
who I admire are fair-minded and open, listening to both sides of
the case, sometimes more than two sides of the case. Certainly
hardworking, people who spend the time, the energy to learn the
facts of the case and the parties to do justice.
In addition to that, I think that the people that I most admire
are those who welcome the citizens into their courtroom and pro-
vide an atmosphere, a fairness, even- handedness, and integrity as
they address cases.
Senator Coburn. Thank you.
I am going to ask each of you this question. You do not have the
advantage of having it heard it prior to coming up. I am not a law-
yer. I am a physician/businessman. As all of you know, judges have
become a political issue, which I think is much to the detriment of
our country.
There is a difference between political ideology and judicial phi-
losophy. I do not think anybody ought to have to explain their po-
322
litical ideology, but would you care to explain what you see as a
proper judicial philosophy?
Ms. Fischer. Thank you, Mr. Chairman, for that question. I
know that it is an important question. As a Federal district court
judge, if I should be so fortunate to become one, I would have to
address the facts of the case and apply the law.
As any sitting judge in the Western District, or in any other dis-
trict court, I would first have to look to precedent. In that vein, I
would look to the Third Circuit, and certainly to the Supreme
Court, as precedent. From that, then I would proceed to make the
rulings that would be required in a case on a case-by-case basis.
Senator Coburn. All right. And you recognize, your authority
comes from the Constitution, the statutes, and the treaties of this
country, as well as stare decis?
Ms. Fischer. Certainly.
Senator Coburn. And nothing else.
Ms. Fischer. That is the basis.
Senator Coburn. As far as the authority for the basis of your
opinions.
Ms. Fischer. That would be correct.
Senator Coburn. All right. Thank you.
Judge Frizzell, you have served in the State of Oklahoma as a
judge for 9 years. First of all, let me thank you for doing that.
Given your service on the bench, you have some insight about the
roles that judges play. Can you kind of share with us your thoughts
on the role of the judiciary in our tri-part government?
Judge Frizzell. Yes, sir. Having tried some 185 or so cases, I
have found that the judiciary, the judge, playing a central role in
the trial of cases, first of all, has to be extremely courteous. The
judge sets the tone in the courtroom. So, courtesy, humility, and I
think restraint, first and foremost.
Obviously, restraint in following stare decis, restraint in recog-
nizing that addressing a case in controversy, one must limit one’s
self to the case before the judge and utilize those tools that are ap-
plicable and can resolve the case and not going beyond.
Senator Coburn. How do we promote more cases into reconcili-
ation rather than trial?
Judge Frizzell. Clearly, alternative dispute resolution — fortu-
nately, in Tulsa, as you know, Mr. Chairman, we have on the State
level an actively-used municipal early settlement procedure that we
use quite a bit. I personally referred a lot of cases there a lot of
times, because parties simply want to be heard.
They want to make their case, and many times by presenting
their case to a mediator they have that catharsis and are able to
get an impartial evaluation regarding the strength of their case.
So, mediation is absolutely essential, as you have previously men-
tioned.
In addition, the Northern District of Oklahoma has an active
process. The Magistrate Judge who is in charge of that was my co-
clerk for Judge Brett, Magistrate Judge Paul Cleary, and he is
doing an excellent job.
Senator Coburn. All right. Thank you.
Judge Frizzell, for 9 years you have been involved with the local
chapter of the American Ends of Court, which, as you know, is an
323
organization dedicated to improving the skills, professionalism, and
ethics of the bench and bar.
Can you tell me how your experience has shaped your skills as
a judge and how you will apply those skills during your service,
should you so be confirmed to the district court?
Judge Frizzell. I think in three ways, Mr. Chairman. First of
all, as you know, the American Ends of Court is designed to pro-
mote civility amongst the bench and amongst the bar. They do so
by dining together, breaking bread together once a month, which
fosters relationships.
Second, through education. Each month we have a presentation
made by one of the people groups, and one that always, if you keep
your ears open, you can pick up tips on how to address a lawsuit
and how the administration of justice ought to be performed.
I think, third, I have dived head-first into the idea of mentoring.
I think we have lost in the American legal system because recently
you see many people from law school going into solo practice and
not going into law firms.
It is essential that they have mentors. Just last week I started
up with a new mentee, who is a private practitioner who has just
a few years of experience and is a solo practitioner in the criminal
area.
Senator Coburn. You have done a lot of pro bono work for both
the Tulsa Speech and Hearing Association, as well as for indigent
Tulsans through the Rotary Club. If it is appropriate, or would it
be appropriate for you, and if so, how would you use your experi-
ence in pro bono work to increase the amount of pro bono work
that is done by the bar that sits before you?
Judge Frizzell. I know that on the State bench we have at-
tempted to increase the amount of pro bono work done for individ-
uals participating or who otherwise would be pro se before the
courts.
I, frankly, do not know whether the Northern District of Okla-
homa promotes — excuse me. I do. But in the area of criminal prac-
tice, because I was a member of the board at one point in private
practice, we had an adjunct board where we represented criminal
defendants. So, we do promote that in the Northern District of
Oklahoma.
Senator Coburn. Thank you.
Then to my final question: judicial philosophy.
Judge Frizzell. Yes, sir. I think, first of all, the linchpin is that
of judicial restraint, as I previously alluded. One must not use the
totality of powers that a judge is given. It is much like being a par-
ent; you do not want to go beyond that which is necessary to re-
solve a particular case. I think, obviously, firm adherence to the
doctrine of stare decis and unfailing courtesy.
Senator Coburn. All right. Thank you.
Judge O’Neill. A really interesting career. You should be proud.
You have had a varied career. You worked as an advocate, then on
the State bench, and now recently as a Federal magistrate judge
for the same court. Probably a lot of this work has been falling on
you anyway, I would imagine. How about all of those experiences,
and how does that fit with making you a great Federal judge?
324
Judge O’Neill. I think starting out as an advocate, that being
a lawyer, makes you understand that there are judges you like to
come before and judges you would prefer never to be before again.
I think that it is important for a judge to remember those experi-
ences so you are the type of judge that people want to appear be-
fore again and again.
With regard to the State court, I handled more than 2,000 crimi-
nal cases. You mentioned earlier the part about mediation. That is
a good part of what occurs every day in the criminal field, as well
as the civil field. I ran that calendar for several years at the end
of my State years on the Superior Court.
Moving then into the Federal court, I handled, and have contin-
ued to handle, settlement conferences on a weekly basis. Some-
times it is the traditional settlement conference, sometimes it is
mediation, sometimes it is a hybrid. But all of those things, coupled
with more than 500 trials that I have handled, I believe, make me
ready for this position.
Finally, when you mention that perhaps I am handling some of
the cases now that I will be handling, that is a true statement. As
you know, in the Federal court a magistrate judge can handle a
case sitting as a district court judge with the consent of all parties.
The consent rate for me is in excess of 90 percent. So for the past,
almost 8 years, on the civil side of it, I have been acting as a dis-
trict court judge.
Senator Coburn. That is great.
You have been recognized also as well for your pro bono and com-
munity service activities, including your service for the Fresno
County Mock Trial competition, and other teaching activities.
Can you describe these activities for the committee, what you
have done?
Judge O’Neill. Yes. Generally it is junior high school and high
school, and it is almost not ever grammar school level. I am invited
back to the junior high school level to teach six to eight classes per
year, either on the first day that they are going to be handling the
Constitution, or the last day that they are handling the Constitu-
tion.
As far as the high school level is concerned, I teach the Advanced
Placement review course for the Government class, specifically the
courts and the Constitution arena, and in between all of that, a lot
of speeches.
I think that judges, from time to time, as best we can, need to
get out of our chambers and out of our courtrooms and into the
public to explain what we do, because so many people do not know.
Senator Coburn. Right. Right.
Do you plan on continuing that work, should you be confirmed?
Judge O’Neill. I absolutely do.
Senator Coburn. Yes. The key to that is making sure the public
has confidence in our judiciary, and I think you are right on.
Judge O’Neill. And if they do not know what we do, there is no
way they can have that confidence.
Senator Coburn. Right.
And how about the answer to my question on judicial philosophy?
Judge O’Neill. There are several things that I think a judge
must do. First, is to be prepared, to have read not just the briefs,
325
but the law, to be ready to proceed with that case before you come
out on the bench.
Second, to be efficient with your time. If you waste time or have
people waste time in your courtroom, you do not have time to give
the people at the end of the calendar the same type of listening
that you need to do in every case.
Civility is absolute. It is an absolute requirement for a judge. I
think that ultimately people need to come into your courtroom
knowing that you are going to apply the law as it is. Not how you
might think it should be, not just on the things that you agree
with, but apply the law as it is.
The only way you are ever going to do that as a judge is to recog-
nize that there are three branches of government, and that means
something. That is not just a convenience, it is the law itself.
Senator Coburn. Thank you.
Ms. Wood, a similar question. You have had broad experience,
both in terms of civil and criminal work, and prosecutorial work.
How has that prepared you to be a Federal judge?
Judge Wood. Well, Senator, I think it puts me in a unique posi-
tion of having been able to see the Federal district court from just
about every angle possible, beginning with behind the scenes as a
law clerk, and to see the decisional process and how that goes on,
then next as a private practitioner representing civil plaintiffs and
defendants, and also defending accused people who have been
brought to the court, then as a county magistrate court, to pass on
issues regarding search and seizure and arrest warrants, and so
forth, then, finally, as the U.S. Attorney, to represent the United
States in civil and criminal matters.
So, I get to see from all those vantage points how crucial it is
for the members of the Federal judiciary to be honest, fair, hard-
working, patient, and humble.
Senator Coburn. Thank you.
Speaking of your role as a U.S. Attorney in the Southern District
of Georgia, what would you outline or lay out for us that are your
major accomplishments as a U.S. Attorney there?
Judge Wood. Senator, I have been U.S. Attorney for approxi-
mately 2 years. I was confirmed in 2004. During that time our of-
fice has increased its productivity, and last year we had the most
productive year that we have ever had in terms of pursuing crimi-
nal defendants resulting in convictions, and complex cases that we
have been able to pursue. This year, as well, we are track to best
that. I also think that the morale in our office is good, and that
affects everyone’s work ethic.
I guess, lastly, I would say, touching on something that Judge
O’Neill mentioned, and that is the public face of the office. I agree
with him that, as public servants, we need to let the public know
what we are doing. Our buildings of justice stand only so much as
we have public confidence and that they trust us.
So I spend a lot of time going to schools, elementary schools up
to colleges and law schools, going to civic clubs and groups, and
telling them about what the Federal law enforcement initiatives
are and what we are doing in our part of the world to accomplish
those.
Senator Coburn. Great.
326
Then to my last question about judicial philosophy? Judge Wood.
My judicial philosophy is fairly simple. I think it is important to
understand the role that a Federal district Judge plays within the
larger system within the three branches of government and within
the appellate system itself.
As a district court judge, I am bound to apply the precedent of
the 11th Circuit Court of Appeals in my State, and the U.S. Su-
preme Court. My task will be to discern the facts as fairly as I can
and to research and discover the law as diligently as I can. If I
were to be fortunate enough to be confirmed, that is what I would
do every day of my career.
Senator Coburn. All right. Thank you.
I have just one final question for each of you. It is something
that you see reflected here in the U.S. Congress. The difference is,
we are not appointed for life, although we might act like it.
[Laughter.]
What will each of you do in your personal life to have a check
or balance so that the position of a lifetime appointment and the
power that comes with that will be moderated, influenced, or a
Governor put on so that our normal human nature of being ap-
proached to ourselves of significance, will never get in the way of
your decisions as a U.S. district court judge.
Ms. Fischer?
Ms. Fischer. Thank you.
Senator Coburn. And by the way, I will give you an out. My bal-
ance is my wife. She cuts me down all the time and puts me right
back where I belong.
Ms. Fischer. Thank you, Mr. Chairman, for that question. I
could echo the same. I would say that my husband Don certainly
adds balance to my life, as do my children. In fact, my husband,
who happens to be a physician, such as the Chairman, makes sure
that I get exercise. I was 25 years old when he started to teach me
how to swim, and I am still learning. I am getting there.
But in addition to that, I think in approaching my every day, I
would expect to approach the matters at hand, if you will, with the
same kind of evenness, if you will, that I currently have in my law
firm practice where I work with a team of younger associates and
partners, paralegals and staff.
We know when to crack a joke. We know when to celebrate some-
body’s success. We support each other. I think I would take those
same kinds of attributes, if you will, to the bench if I would be so
fortunate to be appointed and committed to the bench.
Senator Coburn. Judge Frizzell?
Judge Frizzell. Thank you, Mr. Chairman. Obviously that is a
critical question with this particular job. I would echo Ms. Fischer’s
statement, substituting my wife for her husband, and the children.
Obviously that keeps one humble.
In addition, I have tried to operate on the “bathroom mirror” phi-
losophy. I want to be able to look myself in the mirror the next day
without any second thoughts. That has kind of helped me through
nearly 10 years of service on the State bench. I think, as Ms. Fisch-
er says, you have got to keep active, you have got to keep exer-
cising. With the YMCA right across the street, I use that often.
Senator Coburn. Judge O’Neill?
327
Judge O’Neill. One of the finest judges I have met, who is now
deceased, his name was Hollis G. Best, and he was the presiding
Justice of the Fifth district court of Appeals in California.
When I first got appointed by the Governor of the State of Cali-
fornia to the Superior Court, before I was sworn in he took me to
lunch and he said, “The best judges focus in on responsibility and
not on power.” That is a philosophy that I have followed since the
first day some 17 years ago.
Second, I, too, have a spouse who, in one word, can put me back
where I need to be from time to time. That one word is: overruled.
[Laughter.]
Senator Coburn. Great answer.
Ms. Wood?
Judge Wood. Thank you, Senator. I, too, have a spouse that
keeps me in check. We serve that role for each other. My parents
taught me that you shine brightest when you are polishing others,
and I would take Judge Alaimo’s cue and speak softly and listen
hard.
Senator Coburn. Well, thank you each very much. The Chair-
man will make a determination of when you will come on the busi-
ness calendar. I appreciate you responding on short notice to this
hearing. We are trying to accomplish your nominations through.
I must say, each of you are impressive in your own right. It is
a reflection on the legal profession in this country, as well as our
system of government, that we see such quality individuals before
us.
The record will remain open for one week should you want to
amend or add anything to what you might have said.
With that, the hearing is adjourned.
[Whereupon, at 3:00 p.m. the hearing was adjourned.]
[Submissions for the record follow.]
328
SUBMISSIONS FOR THE RECORD
Statement of Sen. Barbara Boxer
on Nominee for the
Eastern District of California:
Judge Lawrence O’Neill
September 12, 2006
Mr. Chairman and members of the Senate Committee on the Judiciary, I am
pleased to offer my support for Judge Lawrence O’Neill, nominee for the Eastern
District Court of California. Judge O’Neill has an excellent reputation in the
California legal community, and I am confident that, should he be confirmed, he
will discharge his judicial responsibilities with dignity and integrity.
I met Judge O’Neill in 1994, while he was the Presiding Judge over the
Juvenile Courts for Fresno County. Judge O’Neill and I served as panelists in a
roundtable discussion about youth violence that I organized in the Fresno area.
Judge O’Neill and I agreed on some issues, and disagreed on others. But in the end,
Judge O’Neill earned my respect for providing thoughtful insights on the issues and
debating them in a civil manner.
Judge O’Neill is another example of the bipartisan selection process created
by Senator Feinstein and I, along with the White House Counsel’s office. Together,
we created four judicial advisory committees for the State of California, with one in
each federal judicial district.
329
This selection process was put to the test in the case of Judge O’Neill, The
Eastern District, Fresno Division - where Judge O’Neill will sit if confirmed - is in
a state of judicial emergency right now, due to an excessive case load. There are
two judges currently sitting in the Fresno Division, and each is carrying over 1,400
cases - almost three times the national average for a District Court judge.
The bipartisan selection process once again came through, producing yet
another outstanding judicial nominee in a timely manner to address the Fresno
Division judicial emergency. Now it is time for the Senate to do its part and bring
Judge O’Neill’s nomination to the floor for quick confirmation.
Judge O’Neill is a native Californian, bom in Oakland in 1952. He attended
the University of Califomia-Berkeley, where he majored in criminology. He then
obtained a Master’s in Public Administration at Golden Gate University in San
Francisco. Judge O’Neill completed his Bay Area education tour by attending
Hastings College of Law, also in San Francisco.
Following law school, Judge O’Neill began his legal career in private
practice before being named to the California Superior Court in 1 990. From 1990-
99, Judge O’Neill served on the Superior Court in Fresno County with distinction,
including two years as Presiding Judge over the Juvenile Court.
330
Since 1999, Judge O’Neill has served as a federal Magistrate Judge for the
Eastern District, where he has earned the respect and admiration of other judges on
the court as well as attorneys who have practiced before him. He will be a welcome
addition to the bench should he be confirmed.
In closing, I offer my full support for Judge O’Neill’s nomination to the
District Court for the Eastern District of California. The Eastern District will
benefit greatly from the exemplary service of Judge O’Neill, and I urge my Senate
colleagues to confirm his nomination quickly.
331
United States District Court
Northern District of Oklahoma
United States Courthouse
Claire V. Eagan 333 West Fourth Street, Room 41 1 <918)699-4795
Chief Judge Tulsa, Oklahoma 74103-3819 Fax: (918)699-4787
September 12, 2006
Honorable Senator Janies Inhofe
453 Russell Senate Office Building
Washington, DC 20510-3603
Dear Senator Inhofe:
On behalf of the Northern District of Oklahoma, I respectfully request assistance in filling
the judicial vacancy left open by Judge Holmes’ resignation in March 2005.
Cases left by Judge Holmes were substantial in number (about 250) and complexity. In a
small court, such as outs, with three and one-half authorized judgeships, existing cases cannot be
widely allocated. In this instance, Judge Kern and I received the primary burden while the roving
judge from the Eastern District received less. In addition to taking on existing cases from Judge
Holmes, we have drawn new cases over the past year and a half at a higher percentage because we
are missing an authorized judgeship.
Often, senior judges can shoulder much of the burden when districts go through transitions.
Unfortunately, circumstances have been such that our senior judges have been unable to assist. In
March 2005, we had two senior judges one of whom has since taken inactive status (no staff, no
cases) and the other has reduced his caseload to criminal cases only.
Under these circumstances, we hope that the Senate Judiciary Committee will look favorably
upon our need. As always, I thank you for your assistance in judiciary matters during your busy
schedule.
Very truly yours,
CjuSjul y. — -
Claire V. Eagan
332
Statement for Hearing on Judge Gregory Frizzell
by Senator James Inhofe
September 12, 2006
• Mr. Chairman, today I am here in support of Judge Gregory
Frizzell, nominee for the United States District Court for
the Northern District of Oklahoma.
• His family is no stranger to the legal field or to public service,
as his father, Kent Frizzell, served as the Kansas Attorney
General from 1969-1971.
• His father then went on to become Undersecretary of the
Interior, and taught at the University Of Tulsa School Of
Law for 1 8 years.
• Given his father’s distinguished work, it is no surprise that
Judge Frizzell felt compelled to pursue a career in public
service.
• His friends and colleagues have praised his professional
qualifications and personal integrity who all emphasize his
ability to rule fairly from the bench.
• Robert Sartin, Member of the Board of Governors of the
Oklahoma Bar Association, said Judge Frizzell is “...a
man of extremely good character and high integrity, with
a deep sense of personal responsibility toward his fellow
man.”
• Judge Claire Eagan, of the Northern District, said that
since March 2005 there have been no new judges confirmed
to her district and they are in desperate need of new judges as
there are currently three judges doing the work of six — this
just reiterates the importance of quickly confirming Judge
Frizzell.
• Joel Wohlgemuth (V ol-guh-Myooth), a partner at Norman,
Wohlgemuth, Chandler & Dowdell in Tulsa, called Judge
Frizzell a “man of integrity” and a “straight arrow.”
• Before serving in his current position as District Judge of the
14th Judicial District of Oklahoma, Greg Frizzell had a
333
2
long and distinguished legal career with ample federal
experience,
• After graduating with a law degree from the University of
Michigan, he clerked for Judge Thomas Brett, who served
on the U.S. District Court for the Northern District of
Oklahoma.
• He then became an associate for the Oklahoma law firm
Jones, Givens, Gotcher & Bogan from 1986-1994 and ran
his own private practice from 1994-1995.
• In 1995, he was selected by Governor Frank Keating as
General Counsel to the Oklahoma Tax Commission, where
he served until he was appointed to his current position as
District Judge.
• He has also shown a commitment to keeping abreast of
current legal practice by conducting Continuing Legal
Education presentations on behalf of the Oklahoma Bar
Association related to trial practice and procedure.
• Not only has Judge Frizzell proven an effective and fair legal
professional, he is a devoted husband, loving father of six
children, and is active in his community and church.
• Mr. Wohlgemuth (Vol-guh-Myooth) recalls an instance
where Judge Frizzell was at the courthouse late one night
doing work, but brought his children along so that he could
spend time with them.
• Judge Frizzell is a man of great moral integrity who has
proven his character in both his private and public life.
• I cannot say enough good things about his overwhelming
qualifications to serve as District Judge and I urge my
colleagues to quickly approve his nomination.
334
Statement of Senator Patrick Leahy
Ranking Member, Senate Judiciary Committee
Hearing on Judicial Nominations
September 12, 2006
Today, with less than three weeks left in this legislative session, the Committee will hear
from four more candidates for lifetime appointments to the Nation’s federal courts. I am
concerned that these nominations, like so much of the Nation’s pressing business over the
last two years, could be derailed by the misguided priorities of the Bush-Cheney
Administration and the Republican leadership. With so little time remaining in this
Congress, I would have hoped that the Administration and the Republican leadership
would be anxious to make up for lost time by trying, at last, to address the many urgent
and unresolved needs of Americans. I had hoped that we could join together to change
course from the failed policies that have stretched from the Persian Gulf to the Gulf Coast
and left America less secure and set us back as a Nation. Regrettably, rather than learn
lessons from these failures, it appears that they are intent on staying the course. The
President and his political advisors have stayed the disastrous course on judicial
nominations by choosing to renominate five extremely controversial choices for lifetime
positions on the Nation’s highest courts. This Administration seems intent on heeding the
marching orders of the narrow, special interest groups on the right and picking fights. I
urge the Senate Republican leadership not to take the bait and, instead, join with us in the
waning days of this Congress to do the work of the American people.
Re-Nominations of Controversial Nominees
The five nominations the President has sent back to the Senate this month represent a
troubling group. The President re-nominated Judge Terrence Boyle to the Fourth Circuit
despite the fact that as a sitting United States District Judge and while a Circuit Court
nominee. Judge Boyle ruled on multiple cases involving corporations in which he held
investments. The President should have heeded the call of North Carolina Police
Benevolent Association, the North Carolina Troopers’ Association, the Police Benevolent
Associations from South Carolina and Virginia, the National Association of Police
Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well
as the advice of our former colleague. Senator John Edwards, to withdraw this ill-advised
nomination and not re-nominated him. Law enforcement officers from North Carolina
and across the country oppose the nomination. Civil rights groups oppose the nomination.
Those knowledgeable and respectful of judicial ethics oppose this nomination. This
nomination had been pending on the floor calendar in the Republican-controlled Senate
since June of last year when it was forced out of the Committee on a party-line vote. The
Senate did the President a favor by returning this nomination to the White House before
the summer recess. The President should not have re-nominated Judge Boyle.
The President also re-nominated William Gerry Myers III to the Ninth Circuit. This is
another Administration insider and lobbyist whose record has raised serious questions
about his ability to be a fair and impartial judge. I opposed this nomination when it was
considered by the Judiciary Committee in March 2005. This was a nomination that the
1
335
so-called “Gang of 14” expressly listed as someone for whom they made no commitment
to vote for cloture, and with good reason,
Mr. Myers’ anti-environmental record is reason enough to oppose his confirmation. His
lack of independence is another. If anyone sought to proceed to this nomination, there
would be a need to explore any connections to the lobbying scandals associated with the
Interior Department and Republican lobbyist Jack Abramoff.
It is particularly troubling to see Mr. Myers re-nominated because the President ignored
another opportunity to be a uniter. I had suggested that he re-nominate Norman Randy
Smith for the vacancy created by the retirement of Judge Thomas G. Nelson from Idaho.
Instead, the President has again nominated Judge Smith to a California seat on the Ninth
Circuit, effectively stealing California’s seat. That is wrong. I support Senators Feinstein
and Boxer in their opposition to this tactic. I again urge President Bush to resolve this
impasse and turn Idaho’s vacancy into a judge by withdrawing the controversial Myers
nomination and nominating Judge Smith for the Idaho vacancy to which he could be
easily confirmed.
It is distressing that the President chose to re-nominate William James Haynes II to the
Fourth Circuit despite bipartisan concern about this nomination. As General Counsel at
the Defense Department, Mr. Haynes has been deeply involved in seeking to excuse this
Administration’s now discredited policies on the treatment of enemy combatants, the
interrogation and torture of detainees, and the creation of military commissions. In two
hearings, Mr. Haynes has refused to answer questions from Senators about these policies,
despite disturbing developments that have come to light that relate to those policies,
including the Abu Ghraib scandal and scores of other incidents of detainee abuse in
Afghanistan, Iraq, and Guantanamo Bay. In addition, new press reports, declassified
memoranda and letters from former high-ranking military officials have detailed Mr.
Haynes’ disregard for legal concerns raised by senior military and civilian lawyers within
the Armed Services about these policies and his efforts to subvert their advice. It seems
that Mr. Haynes ignored the policy concerns raised by military officers about the effect of
his policies on the safety of American troops and American credibility around the world.
I have found inconsistencies between Mr, Haynes’ testimony and that of the uniformed
JAGs relating to their involvement in the development of detainee interrogation policies
to be particularly troubling. Although Mr. Haynes sought at his hearing in July to allay
some of these concerns regarding his disregard of the advice of uniformed JAGs, his
statements were contradicted by several JAGs who testified before the Senate Armed
Services Committee. Subsequently, Mr. Haynes sought to reconcile his testimony with
that of the JAGs in a letter to the Committee. Unfortunately, even this letter turned out to
be inaccurate, as set forth in a subsequent letter from Daniel DelFOrto, Mr. Haynes’
deputy at the Defense Department. The President had an opportunity to move beyond this
controversy by sending the Senate a more qualified, consensus nominee. Unfortunately,
he squandered that opportunity with this re-nomination.
Finally, the President has re-nominated Michael Wallace to a vacancy on the Fifth Circuit
2
336
even though he received the first ABA rating of unanimously “not qualified” that I have
seen for a circuit court nominee in 25 years. The hearing on his nomination scheduled for
July 1 9 was cancelled, though not before the Committee received written testimony from
the ABA regarding his rating. This testimony, which was confidential until leaked to a
conservative website, details the significant concerns raised by numerous jurists around
the country regarding Mr. Wallace’s judicial temperament, lack of commitment to equal
justice for the poor and minorities, lack of tolerance, and open-mindedness. It details
concerns from judges and lawyers that Mr. Wallace “may not follow the law” and is
driven by his “personal agenda.” Of course, the troubling issues raised in the ABA’s
testimony echo significant concerns about Mr. Wallace’s record on civil rights, his
opposition to the Voting Rights Act, his support for tax exemptions for Bob Jones
University, his opposition to prison safety regulations, and his attempt as President
Reagan’s director of the board of the Legal Services Corporation to undermine efforts to
provide legal services to low-income clients.
Continuation of Misguided Priorities
This is not the first time this Administration and this Republican-led Congress has
diverted resources and attention from America’s needs. Unfortunately, President Bush’s
re-nomination of these controversial nominees is a continuation of a pattern of misguided
priorities that has plagued the Administration and the Senate’s Republican leadership
since the beginning of this Congress. Instead of urging his party to take early and decisive
action to pass comprehensive immigration reform, as he signaled he would in February
2001, the President began his second term campaigning to undercut the protections of our
Social Security system. As a result, at the start of this Congress in 2005, the
Administration’s top priority was not increasing national security or the economic
security of working Americans who are sharing in a smaller piece of the country’s wealth
than they have in decades. Had the Administration been successful at privatizing Social
Security, it would have gutted the program that ensures for all Americans that growing
old does not mean growing poor. Thankfully, Americans rejected this effort.
Unfortunately, the President continues to voice his support for his rejected approach and
refuses to concede his error.
Like the Administration, the Senate’s Republican leadership turned away last spring and
summer from addressing the priorities of most Americans. They focused instead on the
fierce legal battle over the medical treatment of Terri Schiavo, who was in a persistent
vegetative state for more than a decade. Politicians engaged in extraordinary measures to
override what state courts determined to be her personal wishes. The power of the
Federal Government was wielded by some to determine deeply personal choices. The
Republican leader even made a medical diagnosis on the floor of the Senate, and the
President cut short one of his vacations to come back to Washington to sign legislation to
override the precise wishes of this one patient. The American people recoiled from this
misuse of the Government’s time and authority.
The President’s re-nomination of divisive nominees is a repeat of last Congress and last
year, when the Administration and the rubberstamp Republican Senate created a massive
3
337
confrontation over controversial nominees. The Senate narrowly averted the so-called
“nuclear option,” a bid to achieve one-party rule by thwarting the Senate rules. They were
willing to destroy a fundamental check and balance in order to be a more efficient
rubberstamp for this President. Thankfully, this attempt also failed, but not before the
Senate expended much energy and lost precious time.
This summer the Republican leadership determined, despite the many pressing issues
facing the country and affecting Americans, to turn away from the legislative agenda to
focus on two constitutional amendments that would result in restricting the rights of the
American people. Although not among our Nation's most pressing priorities, the
constitutional amendments were considered and rejected. The marriage amendment and
the flag amendment would have artificially created division among the American people.
With more Americans in poverty and extreme poverty and more children without health
care, we must do better. With rising interest rates, rising mortgage rates, rising health care
costs, rising insurance costs, we must do better for America’s working families. While
corporate profits are taking a greater and greater share of our GNP, wages are stagnant
and those in charge refuse to allow a long overdue raise to the minimum wage. We have
just come through a summer of record high gas prices, and for many families, the threat
of record high home heating prices this winter looms around the comer.
The full agenda before us as we enter the final days of this legislative session reflects
how little the Republican leadership has accomplished, even with control of the White
House and both Houses of Congress. A steady course of misguided priorities has cost
Americans progress on real issues that matter most. And these failures to focus on our
real priorities have left America less secure. Just last week, the Senate Democratic
leadership reached out again to refocus our efforts against the terrorists. We introduced
the REAL Security Act in the hope that Senate Republicans would finally turn to that
issue.
The Republican-controlled Congress has yet to enact a federal budget. We are in
violation of the statutory deadline of April 1 5 . We have passed but two appropriations
bills, and we are required by law to pass a dozen. We have yet to reconcile and enact
lobbying reform and ethics legislation. We have yet to deal with the skyrocketing cost of
gasoline and health care. We have yet to reconcile and enact a bipartisan and
comprehensive immigration reform bill. And for the second year in a row the
Republican-led Senate will not even take up the annual intelligence authorization bill.
As we commemorated the first anniversary of Hurricane Katrina two weeks ago, we were
reminded that the situation in the Gulf Coast remains a tragedy with serious human
consequences. We need to commit ourselves and our resources to helping our fellow
citizens who are still in need after the appalling lack of responsiveness by this
Administration. We need to provide the assistance to that region of our country where
rabble remains a fixture of the landscape one year later. Many residents still do not have
homes to return to or jobs waiting for them when they get there.
4
338
As we commemorate the fifth anniversary of the deadliest foreign terrorist attack on
American soil this week, we should refocus our efforts and our resources where they
belong: on the real terrorists and providing real security. More than five years after 9/11,
Osama bin Laden remains at large, taunting us and threatening us— this despite the
bipartisan efforts by the Senate to authorize the President to use the most powerful
military' force in the world to bring him to justice. Had the President not diverted our
forces from Afghanistan to Iraq, we would be much more successful in the war on
terrorism.
Americans would be better served if we used our remaining time in this Congress to
address these vital issues than to focus on political fights over a handful of divisive and
failed nominations.
I look forward to hearing from the four nominees before the Committee today, and I hope
that I will be convinced that they are the kind of nominees who understand that the role
of the judge is to act as a check and balance to protect the rights and liberties of all
Americans. I welcome the nominees and their friends and families to the Committee
today.
#####
5
339
JSN-30-2005 22:3? BARROW & GRIMM PC
918 5852444 P.02
Barrow & Grimm , P.C.
ATTORNEYS AT LAW
610 S. MAIN, SUITE 300 ASSOCIATE MEMBER
TULSA, OKLAHOMA 74119-1258 ROBERT W. GADDIS
TELEPHONE
918/584-1600
FACSIMILE
918/585-2444
WRITER'S E-MAIL
sartinigbggg.com
ALLEN E BARROW, JR.
WILLIAM R. GRIMM
WILLIAM E. FAKRiOR
ROBERT B. SARTIN
WM. BRAD HECKENKEMPER
CHRISTOPHER A. BARROW
ADAM K. MARSHALL
January 31 , 2005
Senator James M. Inhofe
Washington, DC 20510-3603
Re: Judge Gregory K. Frizzell:
Letter of Recommendation;
Our File No. 3851.000
VIA FAX 202-228-0380
Dear Senator Inhofe:
It is my pleasure to submit this letter of recommendation for Greg Frizzell for the
recently created opening at the United States District Court for the Northern District of
Oklahoma.
In the years I have known Greg, I have found him to be a man of extremely good
character and high integrity, with a deep sense of personal responsibility toward his fellow
man. Greg is held in high regard by those who know him, and I can think of no one more
qualified for the office of United States District Judge.
I have been very active in both local and state bar associations, and as a result, have
come into contact with a large number of bar leaders. I currently serve on the Board of
Governors of the Oklahoma Bar Association, and formerly have served as President of both
the Tulsa County Bar Association and the Tulsa County Bar Foundation. My involvement in
the local and state bar associations makes me uniquely qualified to recommend Greg for this
position.
i am sure you have been provided with a list of Greg's qualifications, so it is
unnecessary for me to include them here. However, I will point out that Greg has been a
highly respected and competentTulsa County District Judge fora number of years. Moreover,
with his background in tax law as the former general counsel to the Oklahoma Tax
Commission, Greg is the only candidate for this position with such a diverse background.
Greg is clearly the most qualified person, and I urge you to appoint him.
340
JAN-30 -2005 22:37 BARROW 8, GRIlft PC
918 5852444 P.03
Senator James M. Inhofe
January 31. 2005
Page 2
I appreciate your consideration. If I may be of assistance, please do not hesitate to call.
t truly yours.
A/'
RBS/csd
iert B. Sartin
S:\WPD003S51\000\Ltlnhofc, James.rbs.wpd
esd 1/31/05
341
Senator Specter Statement
Nora Barry Fischer
United States District Judge for the Western District of Pennsylvania
I am pleased to introduce to the Committee an eminently qualified and well-
regarded fellow Pennsylvanian, Nora Barry Fischer, who was nominated to be a U.S.
District Judge for the Western District of Pennsylvania on July 13, 2006. Mrs. Fischer is
a native of Pennsylvania. She was bom near Pittsburgh, in Homestead, Pennsylvania.
Mrs. Fischer has a distinguished academic record. She graduated magna cum
laude from St. Mary’s College, earning her B.A. in 1973. She received her J.D. from
Notre Dame Law School in 1976. In 1977, Mrs. Fischer joined the well-regarded
Pittsburgh firm of Meyer, Darragh, Buckler, Bebnek & Eck as an associate. Meyer,
Darragh made her a junior partner in 1980 and a senior partner in 1982.
In 1992, Mrs. Fischer became an equity partner at another Pittsburgh firm,
Pietragallo, Bosick & Gordon. Mrs. Fischer served as administrative partner in charge of
recruitment and training and served as the co-chair of the Defense Litigation Practice,
which is Pietragallo, Bosick’s largest practice group. At Pietragallo, Bosick, Mrs.
Fischer represented General Electric in both toxic tort and product liability cases for more
than 18 years. Mrs. Fischer has also developed a significant mediation practice. She is a
former Daikon Shield Referee, and she has served as an Adjunct Settlement Judge, an
Arbitrator for the District Court for the Western District of Pennsylvania, and as a
mediator by private appointment and through the West Virginia State Bar Association.
As Special Master for the Court of Common Pleas, Allegheny County, she handled
conciliations, non-jury and jury trials by consent of the parties.
Mrs. Fischer’s many accomplishments have won her a number of awards.
In 2001, the Pennsylvania Bar Association’s Commission on Women in the Profession
awarded Mrs. Fischer the Anne X. Alpem Award for her efforts to promote women in the
law. In 2004, the Pennsylvania Bar Association again recognized Mrs. Fischer, this time
for her work as co-chair of the Task Force on Health Care Delivery in Pennsylvania.
Mrs. Fischer has also been recognized as a Pennsylvania Super Lawyer and as one of the
Top 50 Women Super Lawyers in Pennsylvania.
The American Bar Association has unanimously rated Mrs. Fischer “Well
Qualified” to serve as a federal district court judge. I am sure that Mrs. Fischer will
acquit herself well before the Committee today, and I look forward to supporting her on
the floor later this month.
342
Joel L. Wohlgemuth
Norman Wohlgemuth Chandler & Dowdell
ATTORNEYS AT LAW
2900 MID-CONTINENT TOWER
TULSA. OKLAHOMA 741Q3-4O0S
TELEPHONE (918) 583-7671
www.nwodIaw.com
FAX <918) 684-7046
e-mail: jlwOnwedJaw.com
September 13, 2006
Honorable James M. Inhofe
United States Senator
453 Russell Senate Office Building
Washington, DC 20510-3603
Re: Honorable Gregory K. Frizzell
Dear Senator Inhofe:
It is my understanding that the Honorable Gregory K. Frizzell’s nomination as a federal
district judge is currently pending before the Judiciary Committee of the United States Senate. I am
hopeful that I can contribute some additional information regarding Judge Frizzell which will be of
assistance to the members of the Senate.
I know that you have previously received and reviewed extensive information reflecting
Judge Frizzell’s exceptional credentials, so I shall not belabor these background issues. I have been
acquainted with Judge Frizzell on both a personal and professional level for over twenty years. I
have litigated both jury and non-jury cases before Judge Frizzell, and I have had the opportunity to
observe his performance as atrial judge since his appointment in 1997. His civil docket has ranged
from complex commercial litigation to medical malpractice cases to cases involving the protection
of basic human and constitutional rights. I am confident that the lawyers that have appeared before
Judge Frizzell will state, without hesitation, that the Judge is thoroughly prepared, demonstrates a
dear understanding of the issues, and has an instinctive sense for the fair, proper and just disposition
of his cases.
In addition, the Judge has served with distinction as Presiding Judge of Tulsa County. He
was endorsed by all other district judges for this position, and predictably has been a strong leader
willing to tackle controversial issues. JudgeFrizzell has justifiably received a “well qualified” rating
by the American Bar Association, and he has the respect and support of lawyers from across
Oklahoma.
Judge Frizzell is being considered for the position in the Northern District of Oklahoma that
became vacant by virtue of Judge Sven Holmes’ departure in March of 2005 . Prior to that time, the
Northern District had 3‘A active district judges and 3 senior judges. At the present time we have 2 l A
343
Honorable James M. Inhofe
September 13, 2006
Page 2
active district judges and one senior judge (who takes only criminal eases). Accordingly, there is
truly an urgent need to fill this vacancy as soon as practicable.
Judge Frizzell possesses the experience, judgment and values which we need in the federal
judicial system. On a personal level, the Judge has a great family, tremendous friends and
supporters, and is eagerly awaiting the opportunity to assist the judges of the Northern District.
Incidentally, and as I am sure you know, one of Judge Frizzell’s early and most enthusiastic
supporters has been Henry Zarro w. That fact, by itself, should give you and the United States Senate
the utmost confidence in the President’s nomination of Judge Frizzell for the Northern District of
Oklahoma.
JLW/psg
NOMINATIONS OF ROBERT JAMES JONKER,
NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF MICHIGAN; PAUL
LEWIS MALONEY, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE WESTERN DISTRICT
OF MICHIGAN; JANET T. NEFF, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF MICHIGAN; AND LESLIE
SOUTHWICK, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI
TUESDAY, SEPTEMBER 19, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 3:07 p.m., in room
226, Dirksen Senate Office Building, Hon. Sam Brownback, pre-
siding.
OPENING STATEMENT HON. SAM BROWNBACK, A U.S.
SENATOR FROM THE STATE OF KANSAS
Senator Brownback. The hearing will come to order.
Thank you all for joining us today. We have a confirmation hear-
ing for several highly qualified individuals nominated by President
Bush to serve on district courts in Michigan and Mississippi.
The nominees include the following four individuals: Robert
James Jonker, who has been nominated to be U.S. district Judge
for the Western District of Michigan; Judge Paul Lewis Maloney,
who has also been nominated to be U.S. district Judge for the
Western District of Michigan; Judge Janet Neff, similarly nomi-
nated to be U.S. district Judge for the Western District of Michi-
gan; and, finally, Judge Leslie Southwick, nominated to be U.S.
district Judge for the Southern District of Mississippi.
On behalf of the Committee I want to welcome all of the nomi-
nees, you and your families. You have traveled a great distance to
be here today. I appreciate your willingness to appear before us. It
is quite a day. This is as big deal, as they would put it, to go
through a nomination hearing, and hopefully a confirmation proc-
ess, to be confirmed to be a Federal judge.
( 345 )
346
We have in attendance today several Senators from the home
States of these fine attorneys. I will leave it to my colleagues to dis-
cuss their superb qualifications and to vouch for their fitness to
serve on the bench. I am delighted that you are here.
Since my Ranking Member is not present, I will go to the indi-
vidual Senators to speak for their nominees.
We have in panel one Hon. Thad Cochran, my Chairman on the
Appropriations Committee who I have been delighted to serve with;
from Mississippi, Hon. Trent Lott, a dear friend, the Senator from
Mississippi. I understand that Senator Levin may be coming later,
but is not here yet; and Hon. Debbie Stabenow, a U.S. Senator
from Michigan.
We will go in the order of seniority, as that is the way this place
operates. So, Senator Cochran, I will go with you first. I am de-
lighted that you are here to discuss your nominee.
PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MIS-
SISSIPPI, BY HON. THAD COCHRAN, A U.S. SENATOR FROM
THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much.
I am pleased to introduce to you and the Committee Leslie H.
Southwick, and to recommend to the Committee his confirmation
as a U.S. district court judge for the Southern District of Mis-
sissippi.
I have known Leslie for about 30 years. He is well qualified by
his temperament, his intelligence, his education, and experience to
serve as a U.S. district court judge.
During his distinguished career he has demonstrated a keen
knowledge of the law as a lawyer and a judge. He will reflect cred-
it, in my opinion, on the Federal judiciary. I am glad to notice that
his daughter Cathy is representing his family and is here today to
be with him on this special occasion.
Leslie was born and educated in Texas, but he has deep roots in
Mississippi. He came to the State in 1976 to serve as a law clerk
to U.S. Court of Appeals Judge Charles Clark, who served at that
time on the Fifth Circuit Court of Appeals.
Leslie had graduated Cum Laude from Rice University in 1972.
He then entered the University of Texas School of Law, graduating
in 1975. Following law school graduation, he clerked for Chief
Judge John Runyan, Jr. on the Texas Court of Criminal Appeals
in Austin, and then he came to practice law in Jackson, Mississippi
with the firm of Bernini, Grantham, Grauer & Hughes.
I was practicing law in Jackson at the time and I came to know
him very soon as a keen intellectual, thoughtful, personable mem-
ber of our Bar. He became a respected member of the Bar on a
wide range of legal issues.
He served as Deputy Assistant Attorney General in the Civil Di-
vision of the U.S. Department of Justice. He supervised there 125
lawyers of the Federal Programs Branch. He also supervised the
Office of Consumer Litigation, a 25-lawyer division charged with
civil and criminal enforcement of Federal consumer laws.
In November 1994, Leslie was elected to serve on the Mississippi
Court of Appeals. He served there with distinction. I read some of
347
his opinions and followed his career there on the appellate bench.
He has been one of the most respected judges in that court.
Then he was called to serve as a Staff Judge Advocate for the
155th Armored Combat Brigade of the Mississippi National Guard.
He was deployed to Iraq. He served there with distinction. He has
become the citizen soldier, and he has distinguished himself by an-
swering the call to duty and for this mobilization in support of Op-
eration Iraqi Freedom.
He has been an Adjunct Professor at the Mississippi College
School of Law, where he taught courses in administrative law, con-
sumer law, evidence, statutory interpretation, and judicial history.
He has also served as an instructor at the U.S. Military Academy
at West Point.
He has written several legal and historical articles, been pub-
lished in the Mississippi Law Journal, the Mississippi College of
Law Review, the Wall Street Journal, and other journals and mag-
azines.
He is the author of Presidential Also-Rans and Running Mates,
a historical discussion of the American candidates for presidents
and vice presidents. It won the American Library Association’s
Best Reference Book of the Year Award in 1985.
He has enjoyed politics. He has been active in the political life
of our State and we are very proud of him. Few decisions made by
a U.S. Senator have a farther-reaching effect than the rec-
ommendation to a president of an individual to serve on the Fed-
eral bench.
I am confident that Senator Lott and I have made a good deci-
sion in recommending Leslie Southwick to President George W.
Bush to serve on the Federal bench. I am pleased the President
submitted his name to the Senate for consideration, and he de-
serves to be confirmed by the Senate.
Senator Brownback. Thank you very much, Senator Cochran.
Senator Lott, welcome.
PRESENTATION OF LESLIE H. SOUTHWICK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MIS-
SISSIPPI, BY HON. TRENT LOTT, A U.S. SENATOR FROM THE
STATE OF MISSISSIPPI
Senator Lott. Thank you, Senator Brownback, for having this
timely hearing. I would like to ask that my statement be submitted
for the record in its entirety.
Senator Brownback. Without objection.
[The prepared statement of Senator Lott appears as a submission
for the record.]
Senator Lott. A lot of it is discussion about the resume and the
history of this very fine nominee. I am quite pleased to be here and
to recommend his nomination to the President. I just wanted to
come and vouch for the character of the man. I think that is impor-
tant, too.
While his resume is obviously extremely impressive, his reputa-
tion goes way beyond his legal qualifications, his educational back-
ground, his involvement in public service, his writing ability, his
military career. He has an outstanding record, but he also has a
reputation of just being a fine man of very good temperament.
348
I believe that people, the Senate, looks for that in a nominee. I
doubt that we have had many nominees for the Southern District
of Mississippi, or anywhere in Mississippi for that matter, that ex-
ceeded the qualifications of this nominee.
I focused on two things in particular, his experience there on the
Mississippi Court of Appeals where he served as a presiding judge
for several years, 1999 to 2004, and he amassed a very outstanding
record in that position.
Also, the fact that he chose, at a particular point in his life, to
go into the U.S. Reserves and then transfer to the Mississippi Na-
tional Guard and serve as lieutenant colonel and Staff Judge Advo-
cate of the 155th Brigade. He served in Iraq, where, when I asked
him, “How did it go?” he said, “Well, it was character building.” I
suspect that was the most diplomatic way he could describe his ex-
perience there.
So this really is a unique nominee. He has shown great wisdom,
Mr. Chairman, beyond that, having been born in Texas. He grad-
uated Cum Laude from Rice University and attended the Univer-
sity of Texas School of Law, and clerked there for the Texas Court
of Criminal Appeals.
He had the wisdom for to then become a law clerk for one of the
finest judges I have ever known in my life, Fifth Circuit Court of
Appeals Chief Judge Charles Clark, in Jackson.
After that experience, having lived in Jackson, Mississippi, he
then went to one of the finest law firms in the State and has cho-
sen to live in Mississippi from that day till this, showing the great
wisdom of this nominee in choosing the place where he lives, Mis-
sissippi. We are proud of him. We believe he will make an excellent
Federal judge. I am delighted to be here and vouch for his can-
didacy for this position.
Senator Brownback. Thank you very much. I thank my col-
leagues for their statements in support of the nominee from Mis-
sissippi, an outstanding nominee and fantastic statements in sup-
port.
If my colleagues need to excuse themselves, that is certainly un-
derstandable. If you would like to stay, we would love to have your
presence. But we will proceed now to Senator Stabenow and the
discussion of the Michigan nominees that we have on the panel.
PRESENTATION OF PAUL MALONEY, JANET NEFF, AND ROB-
ERT JONKER, NOMINEES TO BE DISTRICT JUDGES FOR THE
WESTERN DISTRICT OF MICHIGAN, BY HON. DEBBIE
STABENOW, A U.S. SENATOR FROM THE STATE OF MICHIGAN
Senator Stabenow. Well, thank you, Senator Brownback. It is
my great pleasure today to be here. I thank you for holding this
hearing on the nominations of Judge Paul Maloney, Judge Janet
Neff, and Robert Jonker to the U.S. district court for the Western
District of Michigan.
Let me start by indicating that Senator Levin had fully intended
to be here. He is speaking on the floor at this moment and asked
me to submit his written testimony for the record. He is in full sup-
port of all three nominees. If it is possible, he will be here. If not,
certainly it is not because of lack of support for the nominees. So,
I would submit that.
349
Senator Brownback. His full statement will be submitted to the
record.
Senator Stabenow. Thank you.
[The prepared statement of Senator Levin appears as a submis-
sion for the record.]
Senator Stabenow. And in addition to introducing them, I want
to indicate that all three of them bring distinguished legal careers
to the Federal bench, and their resumes are impressive.
In the interest of time, because I want you to have an oppor-
tunity to hear from them directly, I will not go into extensive dis-
cussion of each of their resumes, except to say that we are very
proud of them in Michigan.
Judge Paul Maloney has served as a Circuit judge on the Berrien
County Trial Court for almost 10 years. Judge Maloney also brings
a wealth of public service experience to the bench, including work-
ing as a Berrien County prosecutor, a Deputy Assistant Attorney
General in the Department of Justice, and as Chairman of the
Michigan Sentencing Commission. I want, personally, to welcome
Judge Paul Maloney to the Senate hearing today.
Judge Janet Neff has served as a judge on the Court of Appeals
for the Third District of Michigan for almost 17 years. In addition
to her very distinguished career on the bench, Judge Neff has been
an active leader in Grand Rapids, including serving as the first
woman president of the Grand Rapids Bar Association. I would
like, also, to welcome her, along with her husband Dave and
daughter Meredith, and congratulate her on her nomination as
well.
Robert Jonker has been a partner at Warner, Norcross & Judd
in Grand Rapids for almost 12 years. A lifelong Michiganian, Rob-
ert Jonker is a graduate of Calvin College and the University of
Michigan Law School, and has served as a law clerk for U.S. dis-
trict court judge John Feikens in the Eastern District. I would wel-
come Robert Jonker to the Senate today.
Again, Mr. Chairman, these are brief overviews of what are three
distinguished careers. We are very proud to come together and
have worked with the White House on these nominations.
Senator Levin and I are bringing our full support, enthusiastic
support, for the nominees. I would also indicate that it would be
my hope that we would move expeditiously on the floor on these
nominations. Thank you, Mr. Chairman.
Senator Brownback. Thank you very much, Senator Stabenow.
I appreciate your thoughts, comments, and recommendations of
these highly qualified nominees. I appreciate your attendance here
today.
Senator Stabenow. Thank you.
Senator Brownback. We will call the second panel, the nomi-
nees, forward, if you would join us up front. I do have an oath that
I would like for you to take.
Calling forward Robert James Jonker, to be U.S. district Judge
for the Western District of Michigan; Judge Paul Lewis Maloney,
to be U.S. district Judge for the Western District of Michigan;
Judge Janet T. Neff, to be U.S. district Judge for the Western Dis-
trict of Michigan; and Judge Leslie Southwick, to be U.S. district
Judge for the Southern District of Mississippi.
350
I would ask, if you would, to repeat after me. Hold your right
hand up, please.
[Whereupon, the nominees were duly sworn.]
Senator Brownback. Thank you all. Please take your seats.
Again, as I said at the outset, I thank you all for attending and
being here today. This is one of the key jobs of the Senate, is put-
ting people on the Federal bench. It is a lifetime appointment and
it is an important appointment to be put in such a position of au-
thority and trust.
What I would like for each of you to do, is to give me a brief
opening statement if you have one prepared. As you do that, be-
cause I recognize that families are involved in this as well, I would
like for you to introduce your family to me and to the Committee
as well so we can meet them and thank them because, while it is
a lifetime commitment of you, it is also a lifetime commitment of
theirs.
We do not come into this world by ourselves and we do not stay
here by ourselves, either. There are a lot of people that are around
us that are very key and important.
So, Mr. Jonker, I would like for you to start off. If you would
present your testimony, but please start by introducing any family
members you have here present with you today.
STATEMENT OF ROBERT JAMES JONKER, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN
Mr. Jonker. Well, thank you, Mr. Chairman. I appreciate that.
I do have a great cloud of witnesses and supporters back in Michi-
gan cheering me on today that were not able to be with me other
than in spirit, and they are here that way today.
I want to thank you, Mr. Chairman, and the entire Committee
for convening this hearing and giving me an opportunity to appear
before you and respond to your questions.
I certainly want to thank, in particular, Senator Stabenow for
personally coming today to deliver that introduction. Thanks to
both Senator Stabenow and Senator Levin for their courtesies and
support throughout this process.
Of course, I do need to thank President Bush for honoring me in
the first place with this nomination. I aim to do credit to that nom-
ination, and also to the Senate’s confirmation, if I am fortunate
enough to receive that.
[The biographical information of Robert Jonker follows:]
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UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
PUBLIC
1. Name : Full name (include any former names used).
Robert James Jonker
2. Position : State the position for which you have been nominated.
United States District Judge for the Western District of Michigan
3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.
Office: Warner Norcross & Judd LLP
900 Fifth Third Center
111 Lyon NW
Grand Rapids, MI 49503
4. Birthplace : State date and place of birth.
1960; Holland, Michigan
5. Marital Status : (include name of spouse, and names of spouse pre-marriage, if
different). List spouse’s occupation, employer’s name and business address(es).
Please, also indicate the number of dependent children.
Married to Nancy Grevengoed. Nancy is self-employed as a clinical psychologist and
currently works out of our home. We have two dependent children.
6. Education : List in reverse chronological order, listing most recent first, each
college, law school, or any other institution of higher education attended and
indicate for each the dates of attendance, whether a degree was received, and the
date each degree was received.
Calvin College, 1978-1982; BA, with Honors, in Political Science (Economics Cognate);
May 1982
University of Michigan Law School, 1982-1985; JD, Summa Cum Laude; May 1985
7. Employment Record : List in reverse chronological order, listing most recent first,
all governmental agencies, business or professional corporations, companies, firms.
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or other enterprises, partnerships, institutions or organizations, non-profit or
otherwise, with which you have been affiliated as an officer, director, partner,
proprietor, or employee since graduation from college, whether or not you received
payment for your services. Include the name and address of the employer and job
title or job description where appropriate.
Warner Norcross & Judd LLP
900 Fifth Third Center
111 LyonNW
Grand Rapids, MI 49503
Partner, 1994-Present; Associate, 1987-1993
The Honorable John F. Feikens
United States District Judge for the Eastern District of Michigan
Judicial Law Clerk, 1985-1987
U of M Law School / Professor James White
Research Assistant, 1984-1985
Miller Johnson Snell & Cummiskey
Summer Clerk, 1984
Ryan McQuillan VanderPloeg & Fette
Law Clerk, 1983
8. Military Service and Draft Status : Identify any service in the U.S. Military,
including dates of service, branch of service, rank or rate, serial number (if different
from social security number) and type of discharge received.
No military service
9. Honors and Awards : List any scholarships, fellowships, honorary degrees,
academic or professional honors, honorary society memberships, military awards,
and any other special recognition for outstanding service or achievement.
Order of the Coif
Law School Book Awards (or certificates of Merit) in eight law school classes
Listed in Best Lawyers in America (Business Litigation)
Michigan State Bar Foundation Fellow
Student Body President, Calvin College
Robert S. Feldman Labor Law Award
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10. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give
the titles and dates of any offices which you have held in snch groups.
Federal Bar Association
Western District Chapter of the Federal Bar Association
Executive Board Member (Past approximately 8 years)
Treasurer (Served 2 terms of one year each)
Vice President Operations (Served 2 one year terms)
President-Elect (2006)
Grand Rapids Bar Association
Michigan Bar Association
American Bar Association
11. Bar and Court Admission :
a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.
State of Michigan, 1985. No lapses.
b. List all courts in which you have been admitted to practice, including dates
of admission and any lapses in membership. Please explain the reason for
any lapse in membership. Give the same information for administrative
bodies that require special admission to practice.
State of Michigan (all courts of record), 1985
United States District Court for the Western District of Michigan, 1987
United States District Court Eastern District of Michigan, 1985
United States Court of Appeals for the Sixth Circuit, 1990
United States Court of Appeals for the District of Columbia Circuit, 2005
Supreme Court of the United States, 1996
There have been no lapses in any of the listed admissions.
I have also been admitted on a pro hac basis to many state and federal courts
throughout the country, including United States District Courts in Illinois, Ohio,
North Carolina, New Jersey, Pennsylvania, Minnesota, Florida, California and
New York. I do not have specific dates for these pro hac admissions.
12. Memberships :
a. List all professional, business, fraternal, scholarly, civic, charitable, or other
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organizations, other than those listed in response to Questions 10 or 11 to
which you belong, or to which you have belonged, or in which you have
significantly participated, since graduation from law school. Provide dates of
membership or participation, and indicate any office you held. Include
clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.
I have been a member of the University Club of Grand Rapids (a social and
athletic club) since 1987.
I have served on the Board of Worldwide Christian Schools from approximately
2002-2005.
I have served as a member of the Judicial Code Committee of the Christian
Reformed Church in North America, and am currently serving as Chairperson
of the Committee.
I have been a member of 23 is Enough, a Michigan political action committee
dedicated to stopping the proliferation of casino gambling venues in Michigan
since approximately 2003.
I have been a member of the Committee to Elect Christian Meyer for State
Representative from 2005-2006.
I have been a member and officer of the Council of Church of the Servant
Christian Reformed Church from approximately 2000-2003.
b. The American Bar Association's Commentary to its Code of Judicial
Conduct states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or
religion. Please indicate whether any of these organizations listed in response
to 12a above currently discriminate or formerly discriminated on the basis of
race, sex, or religion - either through formal membership requirements or
the practical implementation of membership policies. If so, describe any
action you have taken to change these policies and practices.
No discrimination.
13. Published Writings and Public Statements :
a. List the titles, publishers, and dates of books, articles, reports, letters to the
editor, editorial pieces, or other published material you have written or
edited, including material published only on the Internet. Please supply four
(4) copies of all published material to the Committee.
None.
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b. Please supply four (4) copies of any reports, memoranda or policy statements
you prepared or contributed in the preparation of on behalf of any bar
association, committee, conference, or organization of which yon were or are
a member. If you do not have a copy of a report, memorandum or policy
statement, please give the name and address of the organization that issued
it, the date of the document, and a summary of its subject matter.
None.
c. Please supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or
legal interpretation, that you have issued or provided or that others
presented on your behalf to public bodies or public officials.
None, other than testifying before the Senate Judiciary Committee in the 109th
Congress on my nomination for this position.
d. Please supply four (4) copies, transcripts or tape recordings of all speeches or
talks delivered by you, including commencement speeches, remarks, lectures,
panel discussions, conferences, political speeches, and question-and-answer
sessions. Please include the date and place where they were delivered, and
readily available press reports about the speech or talk. If you do not have a
copy of the speech or a transcript or tape recording of your remarks, please
give the name and address of the group before whom the speech was given,
the date of the speech, and a summary of its subject matter. If you did not
speak from a prepared text, please furnish a copy of any outline or notes
from which you spoke.
None.
e. Please list all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews
where they are available to you.
I have periodically responded to press questions about my pending cases, but I
have no record of particular interviews.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
None.
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15. Citations : If you are or have been a judge, please provide:
a. citations for all opinions you have written (including concurrences and
dissents);
b. a list of cases in which certiorari has been requested or granted;
c. a short summary of and citations for all appellate opinions or orders where
your decisions were reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural rulings;
d. a list of and copies of any of your unpublished opinions that were reversed on
appeal or where your judgment was affirmed with significant criticism of
your substantive or procedural rulings;
e. a description of the number and percentage of your decisions in which you
issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored; and
f. citations to all cases in which you were a panel member in which you did not
issue an opinion.
I have not served as a judge.
16. Recusal: If you are or have been a judge, please provide a list of any cases, motions
or matters that have come before you in which a litigant or party has requested that
you recuse yourself due to an asserted conflict of interest, or for any other apparent
reason, or in which you recused yourself sua sponte. (If your court employs an
"automatic" recusal system by which you may be recused without your knowledge,
please include a general description of that system.) Please identify each such case,
and for each provide the following information:
a. whether your recusal was requested by a motion or other suggestion by a
litigant or a party to the proceeding or by any other person or interested
party; or if you recused yourself sua sponte;
b. a brief description of the asserted conflict of interest or other ground for
recusal;
c. the procedure you followed in determining whether or not to recuse yourself;
d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure
any other ground for recusal.
I have not served as a judge.
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17. Public Office. Political Activities and Affiliations :
a. List chronologically any public offices you have held, other than judicial
offices, including the terms of service and whether such positions were
elected or appointed. If appointed, please include the name of the individual
who appointed you. Also, state chronologically any unsuccessful candidacies
you have had for elective office or unsuccessful nominations for appointed
office.
None, except my prior nomination to be United States District Judge for the
Western District of Michigan was returned to the President at the close of the
109th Congress.
b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have
ever held a position or played a role in a political campaign, please identify
the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I have been a member of the Committee to Elect Christian Meyer for State
Representative.
I have been a member of 23 is Enough, a Michigan Political Action Committee.
I have assisted in fundraising of Michigan judicial campaigns, but I have not had
a formal role in the campaigns.
I was a Regional Coordinator of the Lawyers for Bush organization.
18. Legal Career: Please answer each part separately.
a. Describe chronologically your law practice and legal experience after
graduation from law school including;
i. whether you served as clerk to a judge, and if so, the name of the
judge, the court and the dates of the period you were a clerk;
I was a law clerk from 1 985- 1 987 for United States District Judge John F.
Feikens in the Eastern District of Michigan. He was Chief Judge during
the first year of my clerkship, and took senior status during my second
year. He is still a sitting senior judge.
ii. whether you practiced alone, and if so, the addresses and dates;
I did not practice alone.
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iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the
nature of your affiliation with each,
Warner Norcross & Judd LLP
900 Fifth Third Center
111 Lyon NW
Grand Rapids, MI 49503
My entire private practice career has been with Warner Norcross & Judd,
as an associate since 1987, and as a partner since 1994.
b. Describe:
i. the general character of your law practice and indicate by date when
its character has changed over the years.
The general character of my practice has involved complex business
litigation, including environmental litigation. I have been recognized for
this work as an attorney listed in Best Lawyers in America for business
litigation.
ii. your typical clients and the areas, if any, in which you have
specialized.
Clients (former and current) include large public and private companies,
such as Alticor (and affiliates); GenCorp; The Dow Chemical Company;
Aerojet-General Corporation; Mettler-Toledo; GlaxoSmithKline; Borg-
Wamer Automotive; Nestle; and Wolverine World Wide.
I have also represented, and continue to represent a variety of other
significant businesses that are not named among the nation’s largest or
most significant (but are nonetheless significant to me), including Hastings
Manufacturing Company; AIS Construction Equipment; Manatron; Webb
Chemical; National Nail; and Spartan Motors.
I have also represented, and continue to represent a number of individuals
in business disputes (most often shareholder litigation).
Finally, I have represented a variety of trade groups and citizen groups,
including Isle Royale Boaters Association; Taxpayers of Michigan
Against Casinos; and Citizens Exposing Truth about Casinos.
c. Describe the percentage of your practice that has been in litigation and
whether you appeared in court frequently, occasionally, or not at all. If the
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frequency of your appearances in court varied, describe such variance,
providing dates.
One hundred percent of my practice has been in litigation. I have frequently
appeared in court. This includes not only personal appearances to handle motion
arguments, trials and other proceedings, but also filing of pleadings and briefs
bearing my name that lead to disposition without oral argument.
i. Indicate the percentage of your practice in:
1. federal courts; 75%
2. state courts of record; 15%
3. other courts. 10%
ii. Indicate the percentage of your practice in:
1. civil proceedings; 100%
2. criminal proceedings.
d. State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole counsel,
chief counsel, or associate counsel.
I have conducted approximately 15-20 formal jury, bench or arbitration trials. I
was lead (or only) counsel on my side of the case in all but one of them. I was
associate counsel on one case.
i. What percentage of these trials were:
1. jury; 35%
2. non-jury. 65%
e. Describe your practice, if any, before the Supreme Court of the United
States. Please supply four (4) copies of any briefs, amicus or otherwise, and,
if applicable, any oral argument transcripts before the Supreme Court in
connection with your practice.
I have never presented oral argument before the Supreme Court.
I have prepared only one set of briefs on the merits in the Supreme Court.
I have also filed, or participated in filing, multiple petitions for certiorari (or
oppositions to petitions), but I have no readily accessible record of all such
filings.
19. Litigation : Describe the ten (10) most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the docket
number and date if unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented; describe in detail the
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nature of your participation in the litigation and the final disposition of the case.
Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the
case was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
(1) The Cordova Environmental Cost Recovery Litigation: These cases included two
consolidated CERCLA cost recovery actions in the Western District of Michigan before
the Honorable Douglas Hillman, the United States Court of Appeals for the Sixth Circuit
and the United States Supreme Court. The principal litigation began in approximately
1989 and ended in approximately 2001 (though some aspects of the case continued to
percolate thereafter). The litigation resulted in several published opinions, the most
important of which are: CPC International, Inc. v. Aerojet-General Corp., Ill F. Supp
549 (W.D. Mich. 1991), aff’d in part and rev’d in part sub. nom. United States v.
Cordova Chemical Co., 59 F.3d 584 (6th Cir. 1995), vacated pending reh 'g en banc, 67
F.3d 586 (1995), aff d in part and rev 'd in part, 113 F.3d 527 (6th Cir. 1997) (en banc),
vacated and remanded sub. nom. United States v. Bestfoods, 524 U.S. 51 (1998),
decision on remand, Bestfoods v. Aerojet-General Corp., 173 F. Supp. 2d 729, 757
(W.D. Mich. 2001). I organized the trial, managed Sixth Circuit appeal and United
States Supreme Court review, handled all briefing, and shared responsibility for witness
examination and oral argument in these cases involving over 2,500 trial exhibits, 90
depositions, on-line access to data base from courtroom, and estimated remediation costs
of over $ 1 00 million. Primary opposing counsel for the United States was Michael
McNulty of the United States Department of Justice in Washington, D.C. Primary
opposing counsel for opposing party Bestfoods (and its predecessors) was Gordon J.
Quist (now United States District Judge for the Western District of Michigan) and J.
Michael Smith (616-831-1754), both of whom were partners with Miller, Johnson, Snell
& Cummiskey in Grand Rapids, Michigan.
(2) The Cordova State Litigation: As part of the overall Cordova litigation, our client
asserted claims against the State of Michigan for reimbursement under a 1977 Consent
Order. The case began in approximately 1989 as part of the federal cost recovery
litigation, but ultimately proceeded to the Michigan Court of Claims (Judge Collette),
and the Michigan Court of Appeals. The Michigan Supreme Court denied the State’s
application for leave to appeal. The case ended in the mid-1990s. Both the trial court
and the Court of Appeals agreed with our claim that the State of Michigan was liable to
reimburse our client for any damages imposed on it under CERCLA. My role involved
handling the briefing in both the trial court and the Court of Appeals. The case resulted
in one published opinion. See Cordova Chemical Company v. Dept, of Natural
Resources, 212 Mich. App. 144 (1995). Opposing counsel for the State included Kathy
Cavanaugh (current practice setting unknown) and Eric Eggan of the State Attorney
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General’s office. Eric is now with Honigman Miller Schwartz and Cohn in Lansing,
Michigan (517-377-0726).
(3) The TOMAC Gaming Compact Litigation: We represented Taxpayers of Michigan
Against Casinos (“TOMAC”) in state court litigation challenging the validity of four
gambling compacts between the State of Michigan and various Indian tribes. The case
began in 2000 in the Ingham County Circuit Court before Judge Houk, and proceeded to
the Michigan Court of Appeals and the Michigan Supreme Court. The case defines the
role of the Legislature and the Governor in handling gambling compacts and has
resulted in several published cases. See TOMAC v. State, 254 Mich. App. 23 (2002),
aff’d in part, rev'd in part and remanded, 471 Mich. 306 (2004), cert, denied, 543 U.S.
1146 (2005). One portion of the case continues on remand. See TOMAC v. State, 268
Mich. App. 226 (2005), Iv granted 474 Mich. 1 097 (2006). My role was lead litigation
counsel throughout the case. Principal opposing counsel for the State of Michigan was
Eugene Driker of Barris, Sott, Denn & Driker, Detroit, Michigan (313-596-9303).
Principal opposing counsel for intervening parties was Richard McLellan of Dykema
Gossett in Lasing, Michigan (517-374-91 1 1).
(4) The Federal Gaming Litigation: We represented the citizen group, TOMAC, in a
challenge to proposed land-to-trust gambling acquisitions for a proposed casino site in
Michigan. The case presented legal issues under the National Environmental Policy
Act, and the Indian Gaming Regulatory Act. We filed the case in the United States
District Court for the District of Columbia. It resulted in published decisions. See
TOMAC v. Norton, 240 F. Supp. 2d 45 (D.D.C. 2003), aff’d 433 F.3d 852 (D.C. Cir.
2006). I served as principal litigation counsel in the case. Principal opposing counsel
for the government was Lisa Jones Fossee of the United States Department of Justice in
Washington, D.C. (202-514-2748).
(5) The Dow Chemical Company NPDES Permit Litigation: This litigation involved
two parallel cases in state and federal court regarding alleged NPDES permit violations
by our client Dow. The State of Michigan sued Dow in Ingham County Circuit Court,
Case No. 95-CV-81 142-CE (Judge Harrison). PIRGIM sued Dow in federal court for
the same alleged violations, Case No. 95-CV-73286 (E.D. Mich.) (Judge ZatkofI). The
case went to trial in Ingham County, and resulted after trial in a bench decision rejecting
the State’s claims for equitable relief and imposing a civil penalty on Dow of $100,000,
in contrast to the State’s request for more than $8 million. The federal case then settled
before trial. I was lead litigation counsel for Dow. Principal opposing counsel for the
State were Stu Freeman (now deceased) and Craig Atchison of the State Attorney
General’s office. Mr. Atchison is no longer with the Attorney General’s office. The
Michigan Bar Journal lists his phone number as 616-405-4840. Principal opposing
counsel for PIRGIM was Andy Buchsbaum (currently available at 734-769-3351).
(6) The GenCorp CERCLA Appeal: GenCorp retained our services to handle the
appeal of a judgment entered against the Company in the United States District Court for
the Northern District of Ohio in the amount of approximately $30 million. (The case
involved some issues parallel to those raised in the Cordova cost recovery litigation.)
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The United States Court of Appeals issued a decision (for publication) rejecting our
principal appeal arguments, but remanding one portion of the case for further
proceedings. See GenCorp v. Olin, 390 F.3d 433 (6 th Cir. 2004), cert, denied, 126 S. Ct.
420 (2005). GenCorp moved for rehearing, and while that motion was pending, the
United States Supreme Court issued a new decision changing one key aspect of
CERCLA law in a way that GenCorp believes provides another basis for vacating the
judgment entered against it. The United States Supreme Court denied certiorari, and the
matter is now back in the District Court on remand. I was lead counsel on appeal.
Principal co-counsel with us on the case (and who handled the trial) is Mike Hardy of
Thompson Hine’s Cleveland office (216-566-5500). Principal opposing counsel is
Ralph Albright of Morgan Lewis & Bockius’ Washington office (202-739-5185). I am
not actively involved in the remand proceedings.
(7) The Hicks Minority Shareholder Litigation: This case involved our client, David
Hicks, a minority shareholder in a Kalamzoo based radio station company. Crystal
Radio. The case began before Judge Foley in the Kalamazoo County Circuit Court
(Case No. B-94-3603) in 1994. After several years of litigation, our client won
summary disposition on his minority shareholder oppression theory, and this ruling
precipitated a settlement favorable to our client. Principal opposing counsel was Craig
Lubben of the Kalamazoo office of Miller Johnson Snell & Cummiskey (269-226-2958).
Also involved as a third-party observer (and counsel to an important witness in the case,
attorney Ric Brown) was attorney Charles Ritter of Miller Canfield’s Kalamazoo office
(269-383-5845). I was principal litigation counsel for Mr. Hicks.
(8) The Nippecraft Litigation: This matter involved a series of related state court,
federal court and American Arbitration Association proceedings over a contractual
relationship between our client, Nippecraft, a company based in Singapore, a local
affiliate of Nippecraft, and a corporate sales representative based in Florida. The
litigation began in the mid-1990s, and continued for several years before it was finally
resolved through trial in arbitration. The arbitrator was attorney Robert Eleveld (616-
336-6600). The state court litigation was in Kent County Circuit Court before Judge
Sullivan, Case No. 96-6969. The federal court litigation was in the Western District of
Michigan before Judge Hillman, Case No. 96-CV-565, and the United States Court of
Appeals for the Sixth Circuit. The case involved a series of procedural, jurisdictional
and corporate law issues. I was lead litigation counsel for our side. Principal opposing
counsel was attorney Norm (“Skip”) Pylman of Gruel Mills Nims & Pylman in Grand
Rapids (616-235-5500).
(9) The National Nail Raiding Litigation: This matter involved a fast-track preliminary
injunction proceeding in United States District Court for the District of New Jersey
(Newark). The case opened and closed in the Spring of the year 2000. Primesource is a
fierce business competitor of National Nail in the packaged nail market, and part of a
multi-billion dollar Japanese conglomerate. Primesource sued National Nail on a variety
of employee raiding, breach of fiduciary duty and other related theories and sought a
preliminary injunction that would have blocked National Nail’s ability to open markets
in New Jersey and in Atlanta. (It also sought a multi-million dollar damage award.)
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Judge Lifland handled the case (Case No, 00-1617), including a preliminary injunction
evidentiary hearing. At the end of the hearing, the Judge denied injunctive relief, and
made preliminary fact-findings so that all parties could understand how he viewed the
case and what would be necessary, in his preliminary view at the time, for Primesource
to secure some eventual relief against National Nail. These preliminary findings
allowed the parties to assess their position just a few weeks into the case, and reach a
settlement that saved everyone an enormous amount of time and money, and that
allowed National Nail to open its new markets. The case did not result in a published
opinion. I was principal litigation counsel for National Nail, along with local counsel
(Bill Reilly of McCarter English) based in New Jersey. Principal opposing counsel was
Steve Marshall of RubinBaum’s New York City office (212-698-7700).
(10) The Webb Chemical Insurance Coverage Litigation: This was a state court case on
behalf of our client against The Hartford for insurance coverage related to clean up costs
of some environmental contamination. Webb was seeking recovery of several hundred
thousand dollars already spent, and declaratory relief to cover future expenses, for a total
package of relief in excess of $1 million. The case involved extensive factual discovery,
many legal briefs, significant expert analysis and ultimately a jury trial in Muskegon
County Circuit Court before Judge Daniels (Case No. 93-30014-CK). The jury returned
a verdict in favor of Webb. After extensive post-verdict proceedings (including motion
practice over then novel issues regarding mediation sanctions and interest rates on
judgments), the insurance company appealed. The case ultimately settled on appeal. I
was principal trial counsel for Webb. Principal opposing counsel was Joel Huyser of
Rhodes McKee in Grand Rapids. Greg Timmer, also of Rhodes McKee, handled post-
verdict proceedings and the appeal (616-233-5132).
20. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe fully the nature of your participation in these
activities. Please list any client(s) or organization(s) for whom you performed
lobbying activities and describe the lobbying activities you performed on behalf of
such client(s) or organizations(s). (Note: As to any facts requested in this question,
please omit any information protected by the attorney-client privilege.)
One of the most significant non-litigation aspects of my legal practice has involved
working for Alticor on the careful internal process it has developed to manage and
resolve disputes among its Independent Business Owners (“IBOs”) without resort to
traditional litigation. This has become a greater focus of my practice in recent years, and
it fascinates me on a numbers of levels, though it is difficult to provide concrete
examples because of confidentiality concerns. Perhaps the most important thing that has
struck me is how well it works! Disputes that could drag on in a public forum at great
expense, time, inconvenience and publicity generally wind up, instead, moving through
the Company’s internal processes and lead to a resolution that the parties are all willing
to accept (if not embrace) as a way of moving on with the business. The process ensures
that people are genuinely heard — a key part of any successful ADR process in my view.
But it also ensures that the ebbs and flows of emotions that so often accompany the
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processing of disputes do not have a chance to fester in the same way they can under a
traditional litigation model. Of course, the Alticor process retains a failsafe feature that
ultimately allows disputing parties to resort to more traditional legal c hannels if the need
arises. But the amazing thing is that it so rarely happens.
Over the years of practice, I have seen other businesses attempt to incorporate some of
the same elements that Alticor has successfully done with its IBOs. What has made this
interesting to me is the realization that parties to any contract that involves the
probability of a long-term relationship can benefit from carefully structuring their ADR
process on the front end of a project. I have worked over the last several years with a
public company (Manatron) that develops software for governmental entities. The
interesting thing about the early form of contracts in the software industry is that they
almost uniformly involved model contracts drawn from traditional UCC Article 2 sales
contracts — the sort of contracts people use to buy and sell commodity products. Over
time, I have seen (and hopefully contributed) to development of an entirely different
model for a software development contract— a model built on the construction project
experience. Building a software product tends to involve the same dynamics and
potential for disputes that often drive construction disputes. Using this model has
allowed me to assist in developing multi-step dispute resolution procedures that keep the
parties talking and working toward solution, rather than running to the courthouse. And,
as in the Alticor experience, it usually works.
The other thing I have learned as a result of these first two non-litigation practice aspects
is that even a bad contract can serve as the foundation for a meaningful ADR process if
the parties are willing to work together with able counsel toward a business solution. In
several of the early Manatron situations, and in several other software development
disputes (including a significant one involving Covansys and our client, Mettler-
Toledo), an old contract premised on the sales model was able to serve as the basis for a
settlement negotiated over several days with a skilled facilitator. This process, unlike
the traditional litigation process, allowed the business players to meet and talk about real
business problems, and allowed the lawyers to craft a solution that at least somehow
honored the original business expectations of the parties as expressed in the original
contract. In effect, the process allowed the parties to have a structured opportunity to re-
negotiate the contract terms to reflect the reality they were experiencing rather than the
fiction they originally conceived.
Another significant experience for me outside the traditional litigation realm has been
service to the Christian Reformed Church in North American as a member (originally)
and now Chair of the Judicial Code Committee. This Committee functions as a special
advisory committee to the national assembly of the denomination on disputes between
members, or between a member and the church that have not been resolved in other
regional or local assemblies. The Committee does have a quasi-judicial role in that it
ultimately does conduct evidentiary hearings that resemble formal trials; does make
proposed findings of fact; and does recommend ultimate disposition. (Since the national
assembly itself cannot perform these functions, as a practical matter, the Committee
process and recommendation carry significant weight.) But the process also includes
14
365
sufficient flexibility to permit — especially in the church setting — a pastoral discussion
with the parties who are in conflict — a discussion that in a surprising number of cases
leads to resolution short of final decision by the national assembly. I have often said
that service on this Committee is the best experience I have ever had (or am likely to
have) on a church committee.
Finally, for about six years, I served as the Chair of the Professional Staff Committee of
our firm. The Committee is responsible for recruiting, development, retention and
review of associate attorneys. The role allowed me to have a significant hand in firm
management, which provided a wonderful education in the business of private legal
practice. But even more importantly in my mind, the role helped me develop empathy
for people in difficult situations, and a deeper understanding of the way human beings
relate to each other, at least in a work setting. I learned over time that, at least in our
firm (but I suspect most others, too), people rarely fail because they lack the raw
intelligence to succeed. Rather, they have for a variety of reasons failed to connect with
the core mission and animating spirit of the organization. This realization ultimately
made my job of “moving associates on” from time to time much easier. I stopped
thinking of this part of the job as “firing” someone, and began to think of it as giving the
person an opportunity to find a setting that would allow the person’s very considerable
skills to flourish and thrive. That sounds hopelessly pollyanish, I know, and I do not
discount the real pain that people experience in a job transition. But I do believe, as I
reflect on the people who I helped through this process, that in almost every case, they
have gone on to a successful — sometimes even stellar— career in other settings.
21. Teaching : What courses have you taught? For each course, state the title, the
institution at which you taught the course, the years in which you taught the course,
and describe briefly the subject matter of the course and the major topics taught.
If you have a syllabus of each course, please provide four (4) copies to the
committee.
None.
22. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you expect to derive from
previous business relationships, professional services, firm memberships, former
employers, clients or customers. Please describe the arrangements you have made
to be compensated in the future for any financial or business interest.
None, other than nomial winding up of my law partnership interest in Warner Norcross
& Judd LLP, under existing articles and by-law arrangements that include no provision
for receipt of deferred income in my case.
23. Outside Commitments During Court Service : Do you have any plans,
commitments, or agreements to pursue outside employment, with or without
compensation, during your service with the court? If so, explain.
15
366
I have no such plans, commitments or agreements, but I do have an interest in working
at some point in the future as part-time, adjunct law school faculty.
24. Sources of Income : List sources and amounts of all income received during the
calendar year preceding your nomination and for the current calendar year,
including all salaries, fees, dividends, interest, gifts, rents, royalties, patents,
honoraria, and other items exceeding $500 or more (If you prefer to do so, copies of
the financial disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here.)
Please see copy of attached Financial Disclosure Report.
25. Statement of Net Worth : Please complete the attached financial net worth
statement in detail (add schedules as called for).
Please see attached Net Worth Statement.
26. Potential Conflicts of Interest :
a. Identify the parties, categories of litigation, and financial arrangements that
are likely to present potential conflicts-of-interest during your initial service
in the position to which you have been nominated. Explain how you would
address any such conflict if it were to arise.
If I am confirmed, the parties, categories of litigation, and financial arrangements
that are likely to present potential conflicts-of-interest during my initial service in
the position to which I have been nominated would include the following: any
case in which my current firm is appearing as counsel, or in which a current client
is a party and any matter on which I substantively worked. These would be
relatively easy conflicts to track and handle using the general screening procedure
noted below. I will follow the Code of Conduct for United States Judges and all
applicable statutes, policies and procedures.
b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.
The general screening procedure I would plan to follow would be one we used in
Judge Feikens’ chambers while I was a law clerk. Law clerks would provide a
daily summary (a brief summary) of the new filings assigned to the Judge each
day. The summary would include enough information to track the potential
conflicts noted. Any conflict presented by appearance of my firm as counsel for a
defendant would be picked up at the time of the initial case status report, if not
before. I will follow the Code of Conduct for United States Judges and all
applicable statutes, policies and procedures.
16
367
27. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless
of professional prominence or professional workload, to find some time to
participate in serving the disadvantaged.” Describe what you have done to fulfill
these responsibilities, listing specific instances and the amount of time devoted to
each.
I have been active in bar related activities since beginning my practice. My most recent
service has focused on the Western District Chapter of the Federal Bar Association. I
have been a member almost since starting practice here, and I have been on the
Executive Committee board for about 7 years, and an officer for at least 3 of those years.
I am currently the Vice-President of Operations, and am on the ballot for the President-
Elect slot this October. The work of this association includes, among many other things,
direct efforts to assist poor and under-represented persons. It also works more generally
to secure the solid administration of justice in the Western District.
My own personal pro bono cases have included representation of two prisoners in
Section 1983 actions. Both cases involved claims of mistreatment during incarceration.
I tried both cases to jury verdict (and lost each time). I am also part of a law firm that
supports pro bono efforts both with significant financial contributions each year.
The bulk of my personal pro bono work at this time is focused on activities on various
church related activities and charitable boards that need free legal expertise. Most
recently, this has involved service on the board of Worldwide Christian Schools (three
years of service ending earlier this year); and service as Chair of the Christian Reformed
Church in North America’s Judicial Code Committee.
This latter role involves significant time commitments when it meets — usually several
days of hearing and preparation, and some additional time for a report to the Church’s
national assembly (called Synod). During non-meeting periods, there is relatively little
work for the Committee. The Committee serves fundamentally as an internal church
tribunal that attempts to resolve disputes between church members, and more often,
between clergy and churches, outside the civil courts. The process follows a civil court
model in many respects, but is more informal than a traditional court. Still, we conduct
trial proceedings with verbatim transcripts, with cross examination of witnesses and with
legal counsel available to any side who wishes to employ it. Cases over which I have
presided or served on a panel of clergy and lay members include 1) a sexual abuse
charge against an elder of a congregation in Canada; 2) review of decisions stripping
clergy credentials; 3) reviewing decision of the church governing board on terminating
the appointment of various persons in the mission field before the scheduled expiration
of the term. I have thoroughly enjoyed this work. It is one of the things that has sparked
my interest in the judiciary.
Finally, as a member and President (not currently) of my local congregation’s counsel, I
have naturally provided legal advice on a wide variety of legal matters.
17
368
28. Selection Process :
a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination
and the interviews in which you participated). Is there a selection
commission in your jurisdiction to recommend candidates for nomination to
the federal courts? If so, please include that process in your description, as
well as whether the commission recommended your nomination. List the
dates of all interviews or communications you had with the White House staff
or the Justice Department regarding this nomination. Please do not include
any contacts with Federal Bureau of Investigation personnel concerning your
nomination.
I know of no formally established commission in my jurisdiction that regularly
reviews or makes recommendations on candidates for nomination to the federal
courts. In this case, I did participate in an interview. There were several local
practitioners and judges, and my belief is that the group recommended me as one
of several possible candidates for appointment. I found out about the local
process after contacting the office of my local congressman, Vem Ehlers, to
indicate that I had an interest in applying for judicial vacancies in my home
district. I also participated in brief interviews with representatives of the White
House Counsel’s Office and the Department of Justice. Sometime later, I also
appeared before and responded to questions posed by a panel selected, as I
understood it, by Michigan Senators Levin and Stabenow. After completing all
the nomination paperwork and undergoing a thorough background investigation, I
was informed that I would be nominated for the position. My nomination was
submitted to the Senate on June 28, 2006. A hearing on my nomination was held
on September 19, 2006. My nomination was returned to the President on
December 19, 2006, when the 109 th Congress adjourned. I was renominated on
March 19, 2007.
b. Has anyone Involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or
question in a manner that could reasonably be interpreted as seeking any
express or implied assurances concerning your position on such case, issue,
or question? If so, please explain fully.
No.
18
369
4. Title (Article HI judges indicate active or senior status;
magistrate judges indicate full- or part-time)
US District Judge Nominee
7. Chambers or Office Address
900 Fifth Third Center
1 1 1 Lyon Street N.W.
Grand Rapids, Ml 49503-2487
<5 US.C.app.§§ 101-ill)
2. Court or Organization
3. Date of Report
U.S. Dist Western Dist of Ml
3/22/2007
5. ReportType (check appropriate type) 6. Repotting Period
(•) Nomination, Date 3/19/2007 1/1/2006
O Initial O An" 0 ® 1 O RfaaJ ,0
2/28/2007
8. On the basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
IMPORTANT NOTES. The instructions accompanying this form must be followed. Complete all parts, checking the NONE box for each part
where you have no reportable information. Sign on last page.
I. POSITIONS . (Reporting individual only; see pp, 9-13 of filing instructions)
CD NONE - (No reportable positions.)
EQSmQN
NAME OF ORGANIZATION/E NTJTY
1.
Partner
Warner Norcrass & Judd LLP
2.
Vice President/Operations
Western District of Michigan Chapter of the Federal Bar Association
3.
General Counsel
Christian Meyer for State Representative
D. AGREEMENTS. (Reporting individual only; see pp. 14-16 of filing instructions)
□ NONE - (No reportable agreements.)
370
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
looker, Robert J
3/22/2007
HI. NON-INVESTMENT INCOME. (Repotting individual and spouse; see pp. 17-24 of filing Instructions)
A. Filer's Non-Investment Income
^ 1 NONE - (No reportable non-investment income.)
PATE
SOURCE AND TYPE
GROSS INCOME
(yours, not spouse's)
1.
2005
Warner Norcross & Judd LLP
$463,666
2.
2006
Warner Norcross & Judd LLP
$330,107
3.
2007
Warner Norcross & Judd LLP
$79,827.80
B, Spouse’s Non-Investment Income (If you were married during any portion of the reporting year, please complete this section. Dollar amount not
required except for honoraria.)
• ! NONE - (No reportable non-investment income.)
BATE source and type
Self-employed psychology practice
l. 2006
Self-employed psychology practice
IV. REIMBURSEMENTS -- transportation, lodging, food, entertainment
(Includes those to spouse and dependent children. See pp. 25-27 of instructions.)
NONE - (No such reportable reimbursements.)
SOURCE
DESCRIPTION
371
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Jonker, Robert J
3/22/2007
V. GIFTS. (Includes those to spouse and dependent children, See pp. 28-31 of instructions.)
■ 1 NONE - (No such reportable gifts.)
SflURCE DESCRIPTION
1. Exempt
VI. LIABILITIES. (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
NONE - (No reportable liabilities.)
CREDITOR
V AEUECOPE
372
FINANCIAL DISCLOSURE REPORT
Page 1 of 2
Name of Person Reporting
Date of Report
Jonker, Robert J
3/22/2007
I Gross value at raid of I
I reporting period I
Transactions during reporting period
Place "(X)” after each asset exempt
from prior disclosure
Lj NONE (No reportable income, assets, or transactions)
Deposit Accounts at Fifth Third Bank
Fifth Third Bank - Stock
Fifth Third Institutional Money Market Fund {N)
Freddie Mac Agency Bond CUSIP 3128X2EY7
Freddie Mac Agency Bond CUSiP 3 1 33F1 RQ2
Fannie Mae Agency Bond CUSIP 3 1 36F52GS
Fannie Mae Agency Bond CUSIP 3 1 36F53G4
8 , Lehman Bros Bids Inc Lehman Corp Bond
CUSIP525 19FAD3
Dreyfus Prem High Inem-B Mut Bnd Fnds CUSIP
262023208
1 0. Alliance Bernstein Growth & Inc Fund CL B CUSIP
018597203
1 1 . Alliance Bernstein Growth & Inc Fund CL B
018597203
12. American Amcap FD CL A CUSIP 023375108
13 . Caiamos Invt Tr New Strategic Income FD CL C
CUSIP 128119849
1 4 . American Cap Incm Builder-C CUSIP 140193301
1 5 . Columbia Fds Ser TR Marsico Growth FD CL C
CUSIP 1 9765 H 198
1 16. American Funds Europacific Growth Fund CUSIP
298706102
j 1 8. Goldman Sachs TR Mid Cap Value FD CL B
CUSIP 38142V7I2
(2)
O)
(4)
(5)
Type (e.g.
Date:
Value
Gain
Identity of
buy, sell,
Month-
Code 2
Code!
buyer/seller
redemption)
Day
(J-P)
(A-H)
(if private
transaction)
1. Jocome/Gain Codes: A =$1,000 or less B =$1,00! -$2,500 C = $2,50145,000 ' D = $5,001415,000 B = $15,001450,000 '
(See Columns B ! and D4) F - $50,001 -$100,000 G = $100, 001-51 ,000,000 HI =41.000.00145,000,000 H2 = More than $5,000,000
2. Value Codes i =$15,000 or less K =$15,001-150,000 L = $50,0014100,000 M = $100,0014250,000
(See Columns Cl and D3) N - S250,000-$500,000 O =$500,001 -$1,000,000 PI =$1,000,00 145,000,000 P2 = $5,000,001425,000,000
P3 '•$25,000,001450,000,000 P4 * SMore than $50,000,000
Value Method Codes Q “Appraisal R = Cost (Real Estate Only) S “Assessment T - Cash/Market
(See Column C2) U = Book Vahie V = Other W - Estimated
P3 "$25,000,001450,000,1
3. Value Method Codes Q = Appraisal
(See Column C2) U = Book Vahie
373
FINANCIAL DISCLOSURE REPORT
Page 2 of 2
VH. INVESTMENTS and TRUSTS
Name of Person Reporting
Date of Report
Jonker, Robert J
3/22/2007
s, value, traascafkms (includes those of the spouse and dependent children. See pp. 34-57 of fifing instructions.)
A.
Description of Assets
(including trust assets)
Place "(X)" after each asset exempt
from prior disclosure
Income
reportin
..II
c
Gross value at end of
repeating period
D.
Transactions Airing reporting period
(•)
Amount
Code 1
(A
(2)
Type (e.g.
div. rent, or
int.)
0)
Value
Code 2
(J-P)
(2)
Value
Method
Code 3
(O-W)
O)
Type (e.g.
buy, sell,
merger,
redemption)
HKSS2SS3
(2)
Dale:
Month -
Day
(3)
Value
Code 2
(J-P)
(4)
Code I
(A-H)
(5)
Identity of
buycr/seiler
(if private
transaction)
1 9. American Growth FD of America-A CUSIP
399874106
nn
y
20, Jennison Natural Resources FD-C CUSIP
476293303
mmt
mm
m
y
y
2 1 . Lord Abbctt Mid-Cap Value FD-B CUSIP
5439 I 9203
mm
U
Q
y
y
22. MFS Mid Cap Growth FD-B CUSIP 552987802
mm
warn
U
U
■
y
y
23. MFS Capital Opportunities CUSIP 552988404
< j
mi
u
a
y
24. American Funds Group New Perspective Fund #07
CUSIP6480I8I09
a
25. ING Global Real Estate FD-C CUSIP 44980R292
r
y
r ;
26. Van Kampen Aggr Growth Fund CL B cusip
921I3A835
Q
EH
in
y
y
27. Jennison Health Sciences C
liBBI
tj
y
u
28. Lord Abbett Small Cap Blend C
KH
M
29. Unit Van Kampen EAFE Select 20 Portfolio 2006- 1
Era
B
m
■
30. Unit Van Kampen EAFE Select 20 Portfolio 2006-3
m
gfjj
Q
m
IB
3 1 . BDP Morgan Stanley Bank
LJ
LLI
j~J
gj
■
m
B
32. Van Kampen Comstock C
a
U
y
y
33. Jennison Natl Resources C
LJ
m
y
y
34, Goldman Sachs Mid Cap Val C
LJ
mm
mm
■Hi
■
y
35, Columbia Marsico Growth C
03
wmm
y
a
36. Unit Van Kampen Brick Opportunity Portfolio
2007-1
mm
UJ
g|
isa
y
Q
l. Income/Gain Codes:
A
“St, 000 or less
B « $1,001-$2,500
C =*2,50I-$S,000
D =$5, 001 -$15,000 E = $15,00 1-$50,000
(See Columns B 1 and D4)
F
“*50,001-5100,000
G =$100,001-*!, 000.000
HI = $1,000.001-$5,000,000
H2 = More than $5,000,000
2. Value Codes:
J
= $15,000 or less
K =$15,001-$50,000
L = $50,001-*100,000
M - $100,001-$250,000
(See Columns C! and D3)
N
= *2 50,000-$ 500,000
O =$500,001-$1, 000.000
PI = $1,000, 001-$5, 000.000
P2 = $5,000, 001-S25, 000,000
P3
* $25,000,001 -*50,000,000
P4 = $More A an $50,000,000
3, Value Method Codes
Q
= Appraisal
R = Cost (Real fist Re Only)
S = Assessment
T = CasWMaiket
(See Column C2)
,u
= Book Value
V --Other
W = Esrimared
374
FINANCIAL DISCLOSURE REPORT
Vm. ADDITIONAL INFORMATION OR EXPLANATIONS (indicate pari of Repeat.)
FINANCIAL DISCLOSURE REPORT
IX. CERTIFICATION.
[ certify that all information given above (including information pertaining to my spouse and minor or dependent children,, if
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et. seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
375
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts, real
estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, and other immediate members of your household.
376
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
Fifth Third Bancorp $ 6,000
Real Estate Owned
Personal residence $ 560,000
Real Estate Mortgages Payable
Personal residence $ 1 00,000
377
Senator Brownback. Thank you very much.
Judge Maloney?
STATEMENT OF PAUL LEWIS MALONEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN
Judge Maloney. Thank you, Mr. Chairman. Thank you for con-
ducting this hearing today on our nominations to be District judges
for the Western District of Michigan. I am honored by the Presi-
dent’s nomination to be a Federal judge, and look forward to an-
swering your questions during the course of this hearing.
I want to personally thank Senator Stabenow for her appearance
this afternoon in support of our nominations. I look forward to your
questions. Unfortunately, my family was not able to make it today.
They are with me in spirit back in Michigan and assorted other
places across the country, Texas and Pennsylvania, to be more spe-
cific.
Thank you, Senator.
[The biographical information of Paul Maloney follows:]
378
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
PUBLIC
1. Name : Full name (include any former names used).
Paul Lewis Maloney
2. Position : State the position for which you have been nominated.
United States District Judge for the Western District of Michigan
3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.
Office: Berrien County Courthouse
811 Port St.
St Joseph, MI 49085
4. Birthplace : State date and place of birth.
1949, Cleveland, Ohio
5. Marital Status : (include name of spouse, and names of spouse pre-marriage, if
different). List spouse’s occupation, employer’s name and business address(es).
Please, also indicate the number of dependent children.
Mamed to Marie Maloney (nee Birrer), School Teacher, River Valley Schools, Three
Oaks, Michigan
6. Education : List in reverse chronological order, listing most recent first, each
college, law school, or any other institution of higher education attended and
indicate for each the dates of attendance, whether a degree was received, and the
date each degree was received.
University of Detroit School of Law; 1972 - 1975, Juris Doctorate Degree, May 1975
Lehigh University, 1968 - 1972, BA Degree conferred, June 1972
7- Employment Record : List in reverse chronological order, listing most recent first,
ail governmental agencies, business or professional corporations, companies, firms,
or other enterprises, partnerships, institutions or organizations, non-profit or
otherwise, with which you have been affiliated as an officer, director, partner,
1
379
proprietor, or employee since graduation from college, whether or not you received
payment for your services. Include the name and address of the employer and job
title or job description where appropriate.
1996-Present, Circuit Judge, Berrien County Courthouse, 81 1 Port St., St. Joseph,
Michigan, 49085
1995-1996, District Judge, Berrien County Courthouse, 81 1 Port St„ St. Joseph,
Michigan, 49085
1993-1995, State of Michigan, Department of Corrections, Special Assistant to the
Director, Grandview Plaza Building, Lansing, MI 48933
1989-1993, Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice, Washington, DC 20530
1975-1989, Berrien County Prosecutor’s Office, (Asst. Prosecutor and Prosecuting
Attorney), 811 Port Street, St. Joseph, MI 49085
1974-1975, City of Detroit Department of Transportation, Legal Division (Law Clerk)
Summer Work During Law School - Great Lakes Pipe Co, West Seneca, NY
8. Military Service and Draft Status : Identify any service in the U.S. Military,
including dates of service, branch of service, rank or rate, serial number (if different
from social security number) and type of discharge received.
None
9. Honors and Awards : List any scholarships, fellowships, honorary degrees,
academic or professional honors, honorary society memberships, military awards,
and any other special recognition for outstanding service or achievement.
None
10. Bar Associations : List ail bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give
the titles and dates of any offices which you have held in such groups.
State Bar of Michigan
Berrien County, Michigan Bar Association
American Bar Association
Michigan Prosecuting Attorneys Association (Highest Office held - President-elect)
Michigan District Judges Association
Michigan Judges Association (Board of Directors Member for one year)
2
380
1 1. Bar and Court Admission :
a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.
State Bar of Michigan continuously since October, 1975
b. List all courts in which you have been admitted to practice, including dates
of admission and any lapses in membership. Please explain the reason for
any lapse in membership. Give the same information for administrative
bodies that require special admission to practice.
State Courts of Michigan continuously since October, 1975
Supreme Court of the United States since 1987
Sixth Circuit Court of Appeals since approximately the late 1970s
United States District Court, Western District of Michigan since approx. 1976
12, Memberships :
a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 10 or 11 to
which you belong, or to which you have belonged, or in which you have
significantly participated, since graduation from law school. Provide dates of
membership or participation, and indicate any office you held. Include
clubs, working groups, advisory or editorial boards, panels, committees,
conferences, or publications.
Knights of Columbus, 2005-Present
Catholic Community Education Commission, 1999-Present, Current President
b. The American Bar Association's Commentary to its Code of Judicial
Conduct states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or
religion. Please indicate whether any of these organizations listed in response
to 12a above currently discriminate or formerly discriminated on the basis of
race, sex, or religion - either through formal membership requirements or
the practical implementation of membership policies. If so, describe any
action you have taken to change these policies and practices.
Being Catholic is required for membership in the Knights of Columbus, Council
1 120, sponsored by my Catholic Parish.
13- Published Writings and Public Statements :
a. List the titles, publishers, and dates of books, articles, reports, letters to the
editor, editorial pieces, or other published material you have written or
3
381
edited, including material published only on the Internet. Please supply four
(4) copies of all published material to the Committee.
Cooley Law Review, Symposium on Michigan Sentencing Guidelines.
Vol 16, Issue 1, 1999
b. Please supply four (4) copies of any reports, memoranda or policy statements
you prepared or contributed in the preparation of on behalf of any bar
association, committee, conference, or organization of which you were or are
a member. If you do not have a copy of a report, memorandum or policy
statement, please give the name and address of the organization that issued
it, the date of the document, and a summary of its subject matter.
None
c. Please supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or
legal interpretation, that you have issued or provided or that others
presented on your behalf to public bodies or public officials.
Between 1989-1992, 1 recall testifying as a representative of the Department of
Justice before Congressional Committees and Sub-Committees. I estimate
appearing on approximately six to ten occasions. I do not have copies of my
prepared remarks.
As Chair of the Michigan Sentencing Guideline Commission, I recall testifying
before Senate and/or House Committees on sentencing issues. Again, I do not
have copies of any prepared statement if one was created.
d. Please supply four (4) copies, transcripts or tape recordings of all speeches or
talks delivered by you, including commencement speeches, remarks, lectures,
panel discussions, conferences, political speeches, and question-and-answer
sessions. Please include the date and place where they were delivered, and
readily available press reports about the speech or talk. If you do not have a
copy of the speech or a transcript or tape recording of your remarks, please
give the name and address of the group before whom the speech was given,
the date of the speech, and a summary of its subject matter. If you did not
speak from a prepared text, please furnish a copy of any outline or notes
from which you spoke.
Since becoming a Judge, I have had very limited occasion for public speaking.
During my Court of Appeals Campaign, I gave short remarks at political events in
support of my candidacy, but I did not retain copies of notes.
I gave a speech a “Respect the Law” Ceremony on May 4, 2000.
4
382
e. Please list all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews
where they are available to you.
I have given interviews to media sources during my tenure as Prosecuting
Attorney. Generally, these interviews concerned criminal justice matters in my
County, including announcements of initiation of charges against individuals and
administrative matters. As Chief Judge, I grant interviews concerning Court
administrative matters, including budget, caseload issues. I do not have a clip or
transcript of any of these interviews.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Berrien County, Michigan Circuit Judge, Appointed 1996, elected and re-elected 1998
and 2002
Berrien County, Michigan District Judge, Appointed 1995, elected 1 996
The Circuit Court is the court of general jurisdiction in Michigan. Jurisdiction includes
trial of all felony crimes, civil lawsuits over $25,000 with accompanying equity
jurisdiction.
The District Court is a statutory court of limited jurisdiction. Jurisdiction includes trial of
misdemeanor matters and civil lawsuits in which the prayer for relief is less than $25,000.
15. Citations : If you are or have been a judge, please provide:
a. citations for all opinions you have written (including concurrences and
dissents);
As a trial Judge in Michigan, my written opinions do not have citations.
b. a list of cases in which certiorari has been requested or granted;
None
c. a short summary of and citations for all appellate opinions or orders where
your decisions were reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural rulings;
In People v. Ervin. Court of Appeals #249826, decided 9/14/04, the Court
reversed, finding that a lesser-included instruction should have been given in this
homicide case.
5
383
In Old Kent Bank v. Kal Kustom . Court of Appeals #23 1915, the Court reversed,
finding my interpretation of a UCC provision to be erroneous.
South Cove v. Dunescane @ New Buffalo II. Ltd.. Court of Appeals #270571,
decided 10/31/06, the Court found inaccurate my interpretation of language in an
easement agreement.
Pheasant Ridge Development Co.. Inc, v, Nottawa Township. Court of Appeals
#269453, decided 12/28/06, reversed in part, affirmed in part. This case dealt
with the applicability of a Township’s “anti-funneling” ordinance to a riparian lot
in a subdivision.
d. a list of and copies of any of your unpublished opinions that were reversed on
appeal or where your judgment was affirmed with significant criticism of
your substantive or procedural rulings;
Opinions were orally issued. See Item c, immediately above.
e. a description of the number and percentage of your decisions in which you
issued an unpublished opinion and the manner in which those unpublished
opinions are filed and/or stored; and
Less than 5% of all decisions are reduced to writing. Those opinions are stored in
the individual Court files.
f. citations to all cases in which you were a panel member in which you did not
issue an opinion.
None
16. Recusal: If you are or have been a judge, please provide a list of any cases, motions
or matters that have come before you in which a litigant or party has requested that
you recuse yourself due to an asserted conflict of interest, or for any other apparent
reason, or in which you recused yourself sua sponte. (If your court employs an
"automatic" recusal system by which you may be recused without your knowledge,
please include a general description of that system.) Please identify each such case,
and for each provide the following information:
a. whether your recusal was requested by a motion or other suggestion by a
litigant or a party to the proceeding or by any other person or interested
party; or if you recused yourself sua sponte;
b. a brief description of the asserted conflict of interest or other ground for
recusal;
c. the procedure you followed in determining whether or not to recuse yourself;
6
384
d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure
any other ground for recusal.
Recusal in Michigan Courts is governed by MCR 2.003 and case law issued by
the Appellate Courts. I am always mindful of the actuality and potential for
conflict of interest.
My Court does not track or keep records of recusals entered sua sponte by a Judge
or otherwise, except in individual Court files.
I do not recall any cases in which a party filed a motion seeking my recusal in
litigation assigned to me. There may be instances where a litigant has sought the
recusal of all Judges of my Court for asserted conflicts.
17. Public Office. Political Activities and Affiliations :
a. List chronologically any public offices you have held, other than judicial
offices, including the terms of service and whether such positions were
elected or appointed. If appointed, please include the name of the individual
who appointed you. Also, state chronologically any unsuccessful candidacies
you have had for elective office or unsuccessful nominations for appointed
office.
Deputy Assistant Attorney General, United States Department of Justice,
Criminal Division, 1989-1992 (Appointed)
Berrien County Prosecuting Attorney, 1981-1989, appointed 1981, elected 1982,
1984, 1988
Unsuccessful candidate for Michigan Court of Appeals in 1994 and 2000 and for
Circuit Judge of Berrien County in 1986
b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have
ever held a position or played a role in a political campaign, please identify
the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
Berrien County, Michigan Republican Party Executive Committee
Vice-Chairman, Berrien County Republican Party During 1980s
Member, Republican State Committee, mid-1980s
I had an active role in my county and state for the election of then Vice-President
George H.W. Bush in 1988. 1 was co-chair of the Congressional District
7
385
committee for the Vice-President and held other positions in sub-groups such as
Michigan Law Enforcement for Bush.
18. Legal Career: Please answer each part separately.
a. Describe chronologically your law practice and legal experience after
graduation from law school including:
i. whether you served as clerk to a judge, and if so, the name of the
judge, the court and the dates of the period you were a clerk;
I did not serve as a Clerk to a Judge.
ii. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the
nature of your affiliation with each.
1996-Present, Circuit Judge, Berrien County Courthouse, 811 Port St, St
Joseph, Michigan, 49085
1 995- 1 996, District Judge, Berrien County Courthouse, 8 1 1 Port St., St.
Joseph, Michigan 49085
1993-1995, State of Michigan, Department of Corrections, Special
Assistant to the Director, Grandview Plaza Building, Lansing, MI 48933
1989-1993, Deputy Assistant Attorney General, Criminal Division, United
States Department of Justice, Washington, DC 20530
1975-1989, Berrien County Prosecutor’s Office, (Asst. Prosecutor and
Prosecuting Attorney), 8 1 1 Port Street, St. Joseph, MI 49085
b. describe:
i. the general character of your law practice and indicate by date when
its character has changed over the years.
My entire career as an attorney has been in public service. As a practicing
attorney, I have served in positions representing the State and Federal
government in criminal matters.
8
386
ii. your typical clients and the areas, if any, in which you have
specialized.
I represented the State and Federal government in my public positions
almost exclusively in the area of criminal law.
c. Describe the percentage of your practice that has been in litigation and
whether you appeared in court frequently, occasionally, or not at all. If the
frequency of your appearances in court varied, describe such variance,
providing dates.
As an Assistant Prosecutor, my practice was 100% litigation, appearing in court
daily.
As the elected Prosecutor, I appeared in court intermittently. I would estimate
litigation constituted 15% of my responsibilities.
My work at the Justice Department did not include court appearances.
i. Indicate the percentage of your practice in:
1. federal courts 5%
2. state courts of record 95%
3. other courts.
ii. Indicate the percentage of your practice in:
1. civil proceedings 2%
2. criminal proceedings 98%
d. State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole counsel,
chief counsel, or associate counsel.
I would estimate that across the scope of my prosecutorial responsibilities I tried
approximately 200 cases to verdict. All of these cases would have been “first
chair” trials.
i. What percentage of these trials were:
1. jury 60%
2. non-jury 40%
e. Describe your practice, if any, before the Supreme Court of the United
States. Please supply four (4) copies of any briefs, amicus or otherwise, and,
if applicable, any oral argument transcripts before the Supreme Court in
connection with your practice.
None
9
387
19. Litigation : Describe the ten (10) most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the docket
number and date if unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented; describe in detail the
nature of your participation in the litigation and the final disposition of the case.
Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the
case was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
The cases delineated below were all litigated as first chair in the Berrien County
Court system during my career as an Assistant Prosecuting Attorney or
Prosecuting Attorney. For your information, Judges Byms, White and Hughes are
deceased. Judge Burkholz retired in 1995.
1. People v. Gerald Gene Barker . #82-617, opposing Counsel, Mr. James Straub,
POB 318, St. Joseph, MI 49085, 269-982-1600. Judge William S. White
Presiding.
This First Degree Murder case was tried in July, 1982. Mr. Barker and two others
committed a rape/murder of a housewife. After sexually assaulting the victim,
she was shot to death at point blank range with a shotgun. Mr. Barker was
convicted of First Degree Murder.
2- People v. Fred Burrell . #84-2717, opposing Counsel, Joseph Spiezer, Address and
Phone Number Unknown. Judge Ronald J. Taylor Presiding
This First Degree Murder case was tried in July, 1985. Mr. Burrell shot and killed
Michigan State Police Trooper Robert Mihalik during the officer’s attempts to
arrest him for a theft of gasoline from a local station. Mr. Burrell was convicted
of First Degree Murder,
2- Pe ople v, Thelma Zoschke . #77-3423, opposing Counsel, Gary Hosbein, 320
Main Street, St. Joseph, MI 49085, 269-983-0656. Judge Julian Hughes
Presiding.
Ms. Zoschke was convicted of Embezzlement by Agent over $100, 10-year felony
offense. She was a clerk for a local unit of government and embezzled funds
from the water department.
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388
4. People v. Richard Clarev Jr .. #84- 1 897, opposing Counsel, Randy Hyms, 610
Ship St., St. Joseph, Ml 49085, 269-983-0551 . Judge William White Presiding.
This First Degree Murder case involved the shooting of two victims at an 1-94 rest
area. Mr. Clarey was fleeing crimes committed in a neighboring county, lost
control of his vehicle, disabling it. He sought substitute transportation by
shooting and killing two citizens in the rest area. Mr. Clarey was convicted of
First Degree Murder. A 7-8 day trial was held December 10-20, 1984.
5 People v. Dr, J, Russell Ham-Ying . #81-537, Delivery of Controlled Substances,
opposing Counsel, Mr. Robert McDowell, 815 Main St., St. Joseph, MI 49085,
269-983-7321. Judge Zoe Burkholz presiding.
Dr. Ham-Ying was a D.O. practicing in Berrien County. The Doctor was
convicted of dispensing controlled substances for no valid medical reason. This
case was one of the first of its kind in Michigan under the Michigan Controlled
Substances Act. Case was tried over five days to verdict.
6. People v. George Smith . #82-3354, opposing Counsel, Andrew Burch, 121 1 E.
Napier Ave., Benton Harbor, MI 49022, 269-926-6135. Judge Zoe Burkholz
presiding.
Triple- Victim, Drug-Related Homicide Case. Mr. Smith was acquitted of First
Degree Murder charges. Trial occurred in November, 1982.
7. People v. Linda Calahan . #80-1833, opposing Counsel, Quentin Fulcher
(Deceased). Judge Chester Byms presiding
Murder case. Defendant was convicted of Second-Degree Murder in the shotgun
slaying of her live-in boyfriend after a six-day jury trial in October, 1980.
8. People v. Andre Craig . #78-2247, opposing Counsel, Donald Bleich, 8 1 6 Ship St.,
St. Joseph, MI 49085, 269-983-0 151.
Armed Robbery case. Defendant found guilty as charged after a two-day jury
trial.
9. People v. Ernest Michael Jackson . #82-5 1 1 0, opposing Counsel, Ernie White, 606
Main St., St. Joseph, MI 49085, 269-0210.
Defendant was convicted of criminal sexual conduct and felony assault arising
from a vicious attack outside a bar. This two-day jury trial was held in January,
1983.
10. People v. Edwin Lee Fetke . #83-2726, opposing Counsel, Peter Johnson, 800 Port
St., St. Joseph, MI 49085, 269-982-1 100.
11
389
Defendant was acquitted of Arson charges arising from a fire at a local paper
manufacturing plant. Defendant was a security guard at the plant. Circumstantial
evidence case was insufficient to convince the jury. Case was tried over three
days in May, 1984.
20. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe fully the nature of your participation in these
activities. Please list any client(s) or organization(s) for whom you performed
lobbying activities and describe the lobbying activities you performed on behalf of
such client(s) or organizations(s). (Note: As to any facts requested in this question,
please omit any information protected by the attorney-client privilege.)
As Chairman of the Michigan Sentencing Commission, I led the effort to establish
sentencing guidelines for all felony crimes in the State of Michigan. The Commission’s
recommendations were largely enacted into law by the Michigan Legislature and now
form the basis for sentencing of felons in Michigan.
As a member of the Committee on Rules of Criminal Procedure, I participated in a total
review of the criminal rules of procedure for Michigan Courts. Recently, the Supreme
Court adopted a vast majority of the Committee’s recommendations
I have not performed lobbying activities.
21. Teaching : What courses have you taught? For each course, state the title, the
institution at which you taught the course, the years in which you taught the course,
and describe briefly the subject matter of the course and the major topics taught.
If you have a syllabus of each course, please provide four (4) copies to the
committee.
None
22. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you expect to derive from
previous business relationships, professional services, firm memberships, former
employers, clients or customers. Please describe the arrangements you have made
to be compensated in the future for any financial or business interest.
Michigan Judges State Pension, defined benefit calculated based on years of service in
Judiciary. Estimated $3200/mo if I separate from State Judicial Service in 2007.
Berrien County Pension, defined benefit calculated based upon years of service with
county and average of highest five years of county salary. Estimated $ 1500/mo at age 60
if I separate from County service in 2007.
12
390
23. Outside Commitments During Court Service : Do you have any plans,
commitments, or agreements to pursue outside employment, with or without
compensation, during your service with the court? If so, explain.
24. Sources of Income : List sources and amounts of all income received during the
calendar year preceding your nomination and for the current calendar year,
including all salaries, fees, dividends, interest, gifts, rents, royalties, patents,
honoraria, and other items exceeding S500 or more (If you prefer to do so, copies of
the financial disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here.)
See attached Financial Disclosure Report
25. Statement of Net Worth : Please complete the attached financial net worth
statement in detail (add schedules as called for).
See attached Net Worth Statement
26. Potential Conflicts of Interest :
a. Identify the parties, categories of litigation, and financial arrangements that
are likely to present potential conflicts-of-interest during your initial service
in the position to which you have been nominated. Explain how you would
address any such conflict if it were to arise.
Since I have been in the judiciary for ten years, I expect the potentiality for
conflicts to be minimal. My financial holdings are modest, and have to date
posed no difficulty. However, I am always mindful of the actuality and potential
for conflict of interest.
b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.
I would resolve any conflict of interest by applying the dictates of the Code of
Conduct for United States Judges and other applicable sources of law or policy
which may pertain.
27. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless
of professional prominence or professional workload, to find some time to
participate in serving the disadvantaged.” Describe what you have done to fulfill
these responsibilities, listing specific instances and the amount of time devoted to
each.
13
391
The nature of my prior employment has made pro bono service as an attorney to
individual clients not practicable. However, I have engaged in efforts to foster respect for
law through Bar activities such as Law Day programs, speaking when requested before
Service Clubs, High School government or law classes, and occasionally in middle
schools and elementary class rooms.
28. Selection Process :
a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination
and the interviews in which you participated). Is there a selection
commission in your jurisdiction to recommend candidates for nomination to
the federal courts? If so, please include that process in your description, as
well as whether the commission recommended your nomination. List the
dates of all interviews or communications you had with the White House staff
or the Justice Department regarding this nomination. Please do not include
any contacts with Federal Bureau of Investigation personnel concerning your
nomination.
After expressing interest in being considered by the President for nomination, I
was interviewed by Congressman Upton’s screening committee in late August
2005. 1 was recommended by that committee for further consideration by the
Congressman.
In late September, I met with several Republican members of the Michigan
Congressional delegation.
On October 18, 2005, 1 was interviewed by representatives of the White House
Counsel’s office and Department of Justice. My nomination was forwarded to the
Senate on June 28, 2006.
After my nomination, Senators Levin and Stabenow convened a screening
committee of attorneys with whom I met on July 21, 2006.
The Senate Judiciary Committee held a hearing on my nomination on September
19, 2006. My Nomination was reported out of committee the following week.
The nomination was returned to the President, on December 19, 2006, when the
109 th Congress adjourned. I was renominated on March 19, 2007.
b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or
question in a manner that could reasonably be interpreted as seeking any
express or implied assurances concerning your position on such case, issue,
or question? If so, please explain fully.
No
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392
AO 10
Rev. 1/2006
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1978
(5 U.S.C. app. §§ 101-111)
I. Person Reporting (last same, first, middle initial)
Maloney, Paul L
2. Court or Organization
District Court, WD MI
3. Date of Report
03/22/2007
4. Title (Article III Judges indicate active or senior status;
magistrate Judges indicate fWi- or part-time)
District Judge Nominee
5a. Report Type (check appropriate type)
[X] Nomination, Date 03/19/2007
Q Initial Q Annual Q Final
6. Reporting Period
01/01/2006
to
02/28/2007
5b. jjj Amended Report
7. Chamber* or Office Address
811 Port Street
St Joseph MI 49085
8. On die basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
IMPOR TANT NOTES: The instructions accompanying this form must be followed. Complete ail parts,
checking the NONE box for each part where you have no reportable information. Sign on last page.
I. POSITIONS . (Reporting Individual only; see pp. 9-13 of instructions.)
"] NONE (No reportable positions.)
EQSffl QN NAME OF ORGANIZATIQN/ENTITY
l. President, Catholic Community Education Commission Lake Michigan Catholic Schools, St Joseph, Michigan
II. AGREEMENTS. (Reporting Individual only; see pp. 14-16 of instructions.)
[ [ NONE (No reportable agreements.)
EAIE PARTIES AND TERMS
1. 1995- 2007 State Judicial Pension calculated based on yeais of service
2. 1995- 2007 Benien County Pension calculated based upon years of service
3.
393
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 2 of 8
Maloney, Paul L
03/21/2007
III. NON-INVESTMENT INCOME. (Reporting Individual and spouse; see pp. 1 7-24 of instructions.)
A. Flier's Non-Investment Income
j j NONE (No reportable non-investment income.)
DATE
SOURCE AND TYPE
INCOME
(yours, not spouse's)
1.2005
Judicial Salary, State of Michigan and County of Berrien
$ 139,500
2.2006
Judicial Salary, State of Michigan and County of Berrien
J 139,500
3.2007
Judicial Salary, State of Michigan and County of Berrien
$ 26,850
4,
S.
B. SpOUSe’s Non-Investment Income - If you mere married during any portion of the reporting year, complete this section.
(Dollar amount not required except for honoraria )
j 1 NONE (No reportable non-investment income.)
DATE
SOURCE AND TYPE
1.2006
Teacher, River Valley School District
2.2007
Teacher, River Valley School District
3.
4.
5.
IV. REIMBURSEMENTS — transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children. See pp. 25-27 of instructions.)
| | NONE (No reportable reimbursements.)
SOURCE
1. Exempt
2.
3.
DESCRIPTION
394
FINANCIAL DISCLOSURE REPORT
Page 3 of 8
Name of Person Reporting
Maloney, Paul L
Rale of Report
03/21/2007
V • GIFTS. (Includes those to spouse and dependent children. See pp. 2S-3I of instructions.)
j | NONE (No reportable gifts.)
SOURCE
I. Exempt
DESCRIPTION
VALUE
2 .
3.
4.
5.
VI. LIABILITIES . (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
[x] NONE (No reportable liabilities.)
CREDITOR DESCRIPTION VALUE CODE
395
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 4 of 8
Maloney, Paul L
03/21/2007
VII. INVESTMENTS Sind TRUSTS - income, value, transactions (includes those of the spouse and impendent children. See pp. 34-S7 of filing instructions)
NONE (No reportable income, assets, or transactions.)
A. ... ■
Description of Assets
(including bust assets)
Place "(X)“ after each asset
exempt from prior disclosure
B.
Income during
reporting period
C.
Gross value at end of
reporting period
D.
Transactions during reporting peri
3d
A)
Amount
Code 1
(A-H)
(2)
Type (e-g.
(1)
Value
Code 2
(J-P)
(2)
Value
Method
Code 3
(Q-W)
(D
Type (e.g.
buy. sell,
merger,
redemption)
If not exempt from <lts
(2)
Date
Month -
Day
(3)
Value
Code 2
(J-P)
W
Code I
(A-H)
(5)
Identity of
buyer/scllcr
{if private
transaction)
1 BROKERAGE ACCOUNT # 1
Exempt
2. —Agere Common Stock
A
Dividend
J
T
3. — Avaya Common Stock
A ,
Dividend
J
T
4. —CMS Energy Common Stock
A
Dividend
■
■
5. — Freescate Semiconductor Common
Stock
A
Dividend
■
■
6. — GE Common Stock
A
Dividend
■
1
m
7. Harley Davidson Common Stock
A
Dividend
■
T
8. -Alcatel-Lucent Common Stock
A
Dividend
J
T
9. -Disney Common Stock
A
Dividend
J
■
10. -Health Services Trust B
B
Dividend
■
■
1 1. -Tech Fund B (fka Info Fund B)
A
Dividend
B
12. —Financial Services Trust B
A
Dividend
J
T
13. —Focus Growth Fund A (fka Amer.
Opp. Fund A)
A
Dividend
J
T
14. —Dividend Growth Securities A
A
Dividend
■
■
15. —Tech Fund A (flea Info Fund A)
A
Dividend
J
T
16. -Liquid Asset Fund
A
Dividend
J
T
m
m
Wjljl
17. BROKERAGE ACCOUNT #2
u
■
J. Income Gain Codes;
A -41,000 cc leas
B«$ 1,001 -$2,500
C=$25Q1 -$5,000
D -S5, 001 -$15,000
E “$15,001 -$50,000
(See Columns B! and EM)
F “*$50,001 * $100,000
G -$100,001 -$1,000,000
HI -$1,000,001 -$5,000,000
H2 -More than $5,000,000
2. Value Codes
I -115,000 or less
K -$15,001 -$50,000
L -$50,001 - $100,000
M -$100,001 -$250,000
(See Columns Cl and D3)
N -5250,001 - $500,000
0 -$500,001 - $1,000,000
PI “$1,000,00! -$5,000,000
P2 -$5,000,001 - $25,000,000
3. Value Method Codes
(See Column C2)
P3 -J25.000.00i - $50,000,000
0 "Appraisal
U -Book Vilue
R -Cost (Real Estate Only)
V -Other
P4 -More than $50,000,000
W -Estimated
T “Cash Market
396
Name of Person Reporting
Date of Report
Maloney, Paul L
03/21/2007
Page 5 of 8
VII. INVESTMENTS and TRUSTS - Income, value, transactions (includes those of the spouse and dependent children. See pp. 34-S7 of Jiling instructions)
| | NONE (No reportable income, assets, or transactions.)
Description of Assets
(including trust assets)
Place "(X)" after each asset
exempt tram prior disclosure
18, - Apple Computer Common Stock
19. —EBay Common Stock
20. —US Government Money Trust
21 . BROKERAGE ACCOUNT #3
22. —Liquid Asset Fund
23. -Microsoft Common Slock
24. -Dividend Growth Securities A
27. STATE OF MICHIGAN 401 (k)
28. -SSgA Bond Market Index
29. —Western Asset Core Bond
30. — MFS Total Return A
31. —Dodge and Cox Stock Fund
32. -Legg Mason Lg. Cap Growth Y
33. —Columbia Acorn Z
34. —American Funds Euro Pacific
Income during
reporting period
5 | W
Gross value at rod of
reporting period
To I m
Transactions during reporting period
int) (J-P) Code 3
(!)
If not exempt from disclosure
Type (c.g.
(2)
(3) j
(4)
(5)
buy, seO,
Date
Value i
Gain
Identity of
merger.
Month-
Code 2 1
Code 1
buyer/seller
redemption)
Day
(J-P)
(A-H)
(if private
transaction)
1. Income Gam Codes:
(See Columns Bl and D4)
2. Value Codes
(See Cohmau Ct and D3)
3. Value Method Codes
(See Column C2)
A -11,000 or teas
F “150,00! -1100,000
I -II 5,000 or leas
N-1250, 001-1500,000
PJ *425,000.001 - 150,000,000
Q “Appraisal
U “Book Value
B -41,001 -12,500
G -4100,001 -11,000,000
K *415,001 -$50,000
O -1500,001 - 11,000,000
8 Cort (Rea) Estate Only)
V -Other
397
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Page 6 of 8
Maloney, Paul L
03/21/2007
VII. INVESTMENTS and TRUSTS —income, value, transactions (includes those of the spouse and dependent children. See pp.3t~57 of, filing instructions)
NONE (No reportable income, assets, or transactions.)
A.
Description of Assets
(including mist assets)
Place *fX) n after each asset
exempt from prior disclosure
B.
Income during
reporting period
C
Gross value at end of
reporting period
D.
Transactions during reporting period
0)
Amount
Code!
(A-H)
(2)
Type (e.g.
tfiv., rent,
orint.)
0)
Value
Code 2
<W>)
(2)
Value
Method
Code 3
(Q-W)
(I)
Type (e.g.
buy, sell,
redemption)
If not exempt from disclosure
(2)
Date
Month -
Day
(3)
Value
Code 2
(J-P)
(4)
Code I
(A-H)
(5)
Identity of
buyer/seller
(if private
transaction)
35, -Templeton Foreign A
A
Dividend
J
T
36. 457 RETIREMENT AC<X>UN1 "
37. —Nationwide Fixed Account
B
Interest
K
T
38. —Neuberger Genesis Fund TC
■
Dividend
J
T
39. 403 b ACCOUNT
40. —New Perspective Fund A
■
Dividend
J
T
41, -Capital World Growth A
■
Dividend
i
T
42. -US Govt Securities A
■
Dividend
j
T
43, FIFTH THIRD BANK
■
Interest
j
T
44. DOJ FEDERAL CREDIT UNION
1
Interest
j
T
1. Income Osin Codes:
(See Columns B1 and D4)
2 Value Codes
(See Columns Cl and D3)
3. Value Method Codes
(See Column C2)
A-ti.OOOoiless
F-*50, 001-1100,000
J-S 13,000 or less
N -4250,001 -5500,000
P3 -J 25,000, 001 - $50,000,000
Q -Appraisal
U “Book Value
B *<1,001 -$2,500
G “$100,001 - $1,000,000
K -*15,001 -*50,000
O =$500,00) -$1,000,000
R -Cost (Real Estate Only)
V-Other
C -*2,501 -*5,000
HI “$1,000,001 - *5,000,000
L -*50,001 -S100.000
PI -Sl.000,001 -*5,000,000
P4 “More than *50,000,000
S -Assessment
W -Estimated
D-S5, 001-315,000 B -*15,001 -*50,000
H2 -More than $5,000,000
M -$100,001 -$250,000
P2 “45,000,001 - $25,000,000
T “Cash Market
398
FINANCIAL DISCLOSURE REPORT
Name of Perms Reporting
Date of Report
Page 7 of 8
Maloney, Paul L
03/21/2007
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS, n**.^.****)
FINANCIAL DISCLOSURE REPORT
Name of Penes Reporting
Date of Report
Page 8 of 8
Maloney, Paul L
03/22/2007
IX. CERTIFICATION.
b>f»nn>f>on prrteinlng lo my ipousn and minor or dependent children, If «ny) li
'““"’'“'S' “ d “<>"■*> “y »«< roport^l »M withheld hecnee I, mo. .ppUcble t.tutory
comntaS’Iviih JSS - (" c ™' r "” ““.“S' *“ d honornrU ond the icceptnnce of giRi which hove boon reported ore In
compliance with the prevMoni of S D.S.C. opp. § Ml et >eq, 5 VS.C. j 7353, nod Jodldol Conference regulations.
FILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N.E.
Washington, D.C. 20544
399
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
400
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Securities/Mutual Funds
State of Michigan 401(k)
SsgA Bond Market Fund
Western Asset Core Bond Fund
MFS Total Return A
Dodge & Cox Stock
Smith Barney Lg Cap Grwth; Y
Columbia Acom;Z
American Funds EuroPacific Growth
Templeton Foreign A Fund
Nationwide Retirement Solutions 457 (b)
Nationwide Fixed Account
Neuberger Ber Genesis Fund
Morgan Stanley Account
Apple Computer
Morgan Stanley Roth IRA
Microsoft
Dividend Growth Securities A
Liquid Asset Fund
S & P 500 Index Fund B
Dividend Growth Securities B
Morgan Stanley IRA Standard
gere Systems
Avaya Inc
CMS Energy
General Electric
Harley Davidson
Lucent Technologies
Walt Disney
Spouse’s 403 (b)
American Mutual Funds
Total
Real Estate owned:
Personal Residence
Real Estate Mortgages Payable:
Personal residence (First Mortgage)
Home Equity Loan
Total Real Estate Mortgages Payable:
$ 161,801
$ 43,593
$ 12,726
$ 17,272
$ 111,160
$ 14,082
$ 360,634
$ 350,000
$ 113,000
$ 22.000
$ 135,000
401
AFFIDAVIT
I, PAUL L. MALONEY, do swear that the information provided in this statement is, to the best
of my knowledge, true and accurate.
Berrien County, Michigan
My Commission Expires: 6/24/07
402
Senator Brownback. Thank you. It is a delight to have you here.
Judge Neff?
STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN
Jude Neff. Thank you, Senator. Thank you particularly for your
comments with regard to the support of family, which is very im-
portant, as you know as someone in public life.
I would like to introduce to you my husband of almost 35 years,
David Neff, and the younger of my two daughters, Meredith Neff,
who is with us here from Wisconsin, where she lives and works.
My older daughter, Genevieve, unfortunately could not be here.
She is in law school in New York City.
Senator Brownback. Welcome. Delighted to have you all here.
Jude Neff. I also am appreciative of the opportunity to have this
hearing. I am extremely grateful to Senators Levin and Stabenow
for forwarding my name to President Bush for consideration and
for his nomination.
I also think it appropriate to thank the staff at the Department
of Justice, particularly David Best and the people who have worked
with him who have helped us so very much through this process,
which can be a little daunting at times, as well as the staff of Har-
riet Meyers in the White House.
They were extremely helpful to me and I am very, very grateful
for all of the courtesies and assistance that have been shown me.
So I am more than pleased to be here and more than honored to
be nominated to this position. Thank you.
[The biographical information of Janet Neff follows:]
403
I, BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Janet Theresa Neff
Former Names: Janet Theresa Hunt, Janet Theresa Nebiolo
2. Address: List current place of residence and office
address (es) .
Home: E. Grand Rapids, MI
Office: 5 Lyon N.W., Suite 624
Grand Rapids, MI 49503
3. Date and place of birth.
4/3/45, Wilkinsburg, PA
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer=s name and
business address (es).
Married to David Askins Neff, Attorney, Retired
5. Education : List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
University of Pittsburgh 1963-67, B.A., cum laude 1967
University of Pittsburgh School of Law 1967-68, left to
transfer to Wayne State University Law School
Wayne State University Law School 1968-70, J.D. 1970
Employment Record : List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college .
404
1970 Internal Revenue Service
Tax examiner
1970- 71 Michigan Court of Appeals
Research Attorney
1971- 73 City of Grand Rapids
Assistant City Attorney
1973-78 VanderVeen, Freihofer & Cook
Associate, Partner
1978-80 Michigan Supreme Court
Commissioner
1980 Office of the U.S. Attorney
Department of Justice
Assistant United States Attorney
1980-88 William G. Reamon, P.C.
Associate
1989- Michigan Court of Appeals
present Judge
7. Military Service : Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
No.
8. Honors and Awards : List any scholarships, fellowships,
honorary degrees , and honorary society memberships that you
believe would be of interest to the Committee .
1 graduated cum laude from the University of Pittsburgh
where I was elected to Omicron Delta Epsilon, an Economics
Honorary Society.
Recipient of the "Law Enforcement" award for 1998 by the Order
Sons of Italy in American Grand Lodge of Michigan
Recipient, Outstanding Member 2006, Women Lawyers Association
of Michigan, Western Michigan
2
405
9. Bar Associations : List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups .
State Bar of Michigan
Commissioner 1980-1984
Grand Rapids Bar Association
Treasurer 1985-87
Vice-President 1987-88
President-Elect 1988-1989
President 1989-90
Michigan Trial Lawyers Association
Women Lawyers Association of Michigan
Women Lawyers Association of Michigan, Western Region
Association of Trial Lawyers of America
American Bar Association
Member and Chair, State Bar of Michigan Character and
Fitness Subcommittee
Member, D.S. District Court Professional Review Committee
Trustee, Kent Medical Society
Trustee, Grand Rapids Bar Association Professional
Relations Committee
Member, State Bar of Michigan Task Force on Racial,
Ethnic and Gender Issues in the Courts and Legal
Profession
Member, State Bar of Michigan Open Justice Committee
Member, Grand Rapids Area Legislative Business Forum
Member, Grand Rapids Bar Association Access to Justice
Center Committee
Member, Grand Rapids Bar Association Diversity Committee
3
406
10. Other Memberships : List all organizations to which you
belong that are active in lobbying before public bodies .
Please list all other organizations to which you belong.
Order, Sons of Italy in America
Progressive Women' s Alliance of Grand Rapids
11. Court Admission : List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice .
Michigan Supreme Court, 1971:
Michigan Supreme Court
Michigan Court of Appeals
l 3t through 57 th Circuit Courts
Recorder's Court, Detroit
Court of Claims
1 st through 98 th District Courts
Michigan Probate Courts
Michigan Municipal Courts
Michigan Administrative Agencies
U.S. District Court for the Eastern District of MI, 1971
U.S. District Court for the Western District of MI, 1973
U.S. Court of Appeals for the Sixth Circuit, 1986
12. Published Writings : List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
None
13. Health : What is the present state of your health? List the
date of your last physical examination.
I am in excellent health. My last physical examination was
on 3/29/06.
4
407
14. Judicial Office : State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
1/1/89 - Present - Judge, Michigan Court of Appeals, Elected
The Michigan Court of Appeals has statewide general civil
and criminal jurisdiction over appeals from all state trial
courts and state administrative agencies. The Court's
jurisdiction is primarily non-discretionary . Under the 1963
Michigan Constitution, which created the Court of Appeals,
litigants have a right of appeal to the Court of Appeals,
whereas Michigan Supreme Court's jurisdiction is primarily
discretionary. In the vast majority of litigated and appealed
cases, the Court Of Appeals is the court of last resort in
Michigan. The per judge case load and disposition rate both
rank consistently among the highest of U.S. state intermediate
appellate courts.
Twenty-eight elected judges currently serve on the Court of
Appeals and hear cases in three- judge panels. Our dockets are
approximately evenly divided between criminal and civil
appeals. A decision of any panel of the Court is controlling
throughout the state and is reviewable by the Michigan Supreme
Court on leave granted.
15. Citations : If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have written;
Morris v Governor, 214 Mich App 604; 543 NW2d 363 (1995), lv
den 453 Mich 962; 557 NW2d 311 (1996)
Martinez v Ford Motor Co, 224 Mich Aop 247; 568 NW2d 396
(1997) .
Cherry Growers v Michigan Processing Apple Growers, Inc, 240
Mich App 153; 610 NW2d 613 (2000)
People v Rodriguez, 251 Mich App 10; 650 NW2d 96 (2002), lv
den People v Porter, 467 Mich 932; 655 NW2d 566 (2002) and
People v Rodriguez, 468 Mich 880; 659 NW2d 241 (2003)
City of Lansing v Schlegel, 257 Mich App 627; 669 NW2d 315
(2003)
People v Jones, 260 Mich App 424; 678 NW2d 627 (2004)
5
408
People v Moorer, 262 Mich App 64; 683 NW2d 736 (2004)
Grand Trunk Western Railroad, Inc v Auto Warehousing Co, 262
Mich App 345; 686 NW2d 756 (2004)
In re McEvoy, 267 Mich App 55; 704 NW2d 78 (2005) , Iv den
474 Mich 1068; 711 NW2d 306 (2006)
Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005)
(2) a short summary of and citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings;
People v Westman, 262 Mich App 184; 685 NW2d 423 (2004),
overruled by People v Monaco, 474 Mich 48, 710 NW2d 46 (2006) .
SUMMARY: Offense to which defendant pleaded guilty, felony
failure to pay child support, was a continuing offense that
straddled old and new versions of law that criminalized
failure to pay. Statute's application did not violate Ex Post
Facto Clauses.
Langrill v Stingers Lounge, 261 Mich App 698; 683 NW2d 225
(2004) , vacated and remanded 471 Mich 926, 689 NW2d 228
(2004) .
SUMMARY: A grant of summary disposition in favor of the lounge
was improper where the individual's action was not time barred
because she originally retained her attorney for the purpose
of an auto negligence claim, not a dramshop action.
Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d 776
(2003) , affirmed in part, reversed in part and remanded 472
Mich 408; 697 NW2d 851 (2005).
SUMMARY : In a hostile work environment claim, notice to
employer was insufficient where worker reported incident but
asked for confidentiality. Court disagreed with, but followed,
caselaw disallowing claim against supervisor who created
hostile environment.
6
409
Thomason v Contour Fabricators , Inc, 255 Mich App 121; 662
NW2d 51 {2003} , modified in part and remanded 469 Mich 960,
671 NW2d 41 (2003) .
SUMMARY; Where employee was injured while having blood drawn
at her place of employment for employment provided insurance,
employee's injury arose in the course of employment and
employee was entitled to workers' compensation benefits.
Sekulov v City of Warren, 251 Mich App 333; 650 NW2d 397
(2002) , vacated and remanded 468 Mich 863, 659 NW2d 229
(2003) .
SUMMARY: Summary judgment was reversed when county had
jurisdiction over location of automobile accident. New case
law would have only prospective application, and full
retroactive effect was unjust and unwarranted.
Sweatt v Dep't of Corrections, 247 Mich App 555; 637 NW2d 811
(2001), reversed and remanded 468 Mich 172; 661 NW2d 201
(2003) .
SUMMARY: Where a corrections officer suffered a work-related
injury and was then incarcerated, he was entitled to
reinstatement of disability payments upon his release even
though his employer, the DOC, was prohibited by statute from
hiring him back.
Corley v Detroit Bd of Education, 246 Mich App 15; 632 NW2d
147 (2000), reversed 470 Mich 274; 681 NW2d 342 (2004).
SUMMARY: Plaintiff established a genuine issue concerning
whether the alleged adverse actions were factors in decisions
affecting her employment; thus, granting summary disposition
to defendants was improper.
People v Ross, 242 Mich App 241; 618 NW2d 774 (2000), vacated
and affirmed on alternative grounds 465 Mich 909; 638 NW2d 746
( 2001 ) .
SUMMARY: Assault with intent to rob while unarmed constituted
predicate felony, as essentially attempted robbery, for
purposes of felony murder statute, so trial court's reduction
of conviction to second-degree murder was reversed.
7
410
Bingham Twp v RLTD Railroad Corp, 237 Mich App 538; 603 NW2d
795 (1999), reversed 463 Mich 634; 624 NW2d 725 (2001).
SUMMARY: Reference in the Michigan Trailways Act to local
ordinances did not mean that plaintiff's local zoning
ordinances should control the development of defendants' bike-
and-commuter trailway over the statute.
Crego v Coleman, 232 Mich App 284; 591 NW2d 277 (1998),
reversed 463 Mich 248, 615 NW2d 218 (2000).
SUMMARY: A state statute's denial of right to modify child
support for illegitimate child, but that did not deny such
right to legitimate children, was unconstitutional because
such statute violated equal protection right of child born
outside marriage.
In re Forfeiture of $275, 227 Mich App 462; 576 NW2d 431
(1998), reversed 457 Mich 864; 581 NW2d 732 (1998).
SUMMARY: A trial court erred in ordering the forfeiture of
currency where there was insufficient evidence under Michigan
law to connect the claimant's possession of the currency with
another individual's possession of large amounts of cocaine.
People v Brownridge, 225 Mich Ap. 291; 570 NW2d 672 (1997),
affirmed in part and reversed in part 459 Mich 456, 591 NW2d
26 (1999), amended 459 Mich 1276, 595 NW2d 856 (1999).
SUMMARY: Defendant should have been allowed to admit testimony
of an officer related to investigating officer's credibility
and truthfulness where it had significant probative value and
omission may have affected outcome of trial.
Haberl v Rose, 225 Mich App 254; 570 NW2d 664 (1997),
abrobated by Alex v Wildfong , 460 Mich 10; 594 NW2d 469
(1999) .
SUMMARY: Governmental employee, who was acting in scope of her
employment and driving her own car when the accident occurred,
was liable under the civil liability statute as an owner even
though she was immune from common law negligence as driver.
8
411
Bieszck v Avis Rent-A-Car System , Inc, 224 Mich App 295; 568
NW2d 401 (1397), reversed 459 Mich 9, 583 NW2d 691 (1998).
SUMMARY : In personal injury action, husband and wife were
entitled to new trial where trial court erroneously submitted
issue of rental company's consent to underage driver to jury.
Car lease provision was insufficient to overcome presumption
of consent.
People v Harris, 219 Mich App 184; 555 NW2d 891 (1996),
vacated and remanded for reconsideration in light of People v
Mitchell , 454 Mich 145; 560 NW2d 600 (1997), 455 Mich 864, 567
NW2d 251 (1997) .
SUMMARY: Defendant's adjudications for sexual conduct and
felonious assault improperly were scored under the Michigan
Sentencing Guidelines as prior convictions; they were
supplemental dispositions that Michigan Court Rules treated as
probation violations .
People v Mack, 218 Mich App 359; 554 NW2d 324 (1996), appeal
denied; ordered not precedential 455 Mich 865, 567 NW2d 251
(1997) .
SUMMARY : A trial court erred in failing to provide a defendant
with various discovery material requested by him, but the
errors were harmless when overwhelming evidence existed to
convict the defendant, including his own admission.
Shurlow v Bonthvis, 218 Mich App 142; 553 NW2d 366 (1996),
affirmed in part and reversed in part 456 Mich 730; 576 NW2d
159 (1998) .
SUMMARY: After obtaining judgment of possession and money
judgment, landlords brought action against tenant and
guarantor of commercial lease contracts for additional
damages. Although action was stayed when tenant and guarantor
filed bankruptcy petitions, stay was lifted after guarantor
withdrew bankruptcy petition following rejection of landlords'
claim in bankruptcy court. The trial court granted motion for
summary disposition by guarantor.
9
412
Berrien Co Probate Judges v Michigan AFSCME Council 25, AFL-
CIO, 217 Mich App 205; 550 NW2d 859 (1996) , appeal denied;
ordered not precedential, 454 Mich 908; 564 NW2d 46 (1997).
SUMMARY: The probate court and the county were not joint
employers and could not implicitly agree to act as joint
employers by sharing services and waive the legal rights of
employees because this would violate the separation of powers
doctrine .
People v Baker, 216 Mich App. 687; 551 NW2d 195 (1996),
reversed by People v Goecke, 457 Mich 442, 579 NW2d 868
(1998) .
SUMMARY: A finding that defendant was driving drunk, without
more, was insufficient to warrant an inference of malice to
support a conviction for first degree murder.
Volkema v Dep't of Natural Resources, 214 Mich App 66; 542
NW2d 282 (1995) , affirmed in part and disapproved in part 457
Mich 886; 586 NW2d 231 (1998).
SUMMARY: Denial, of property owner's inverse condemnation claim
was proper because the mere diminution on the value of the
property was not compensable and because the trial court
considered how the land-use regulation affected the property
as a whole.
Nelson v American Sterilizer Co, 212 Mich App 589; 538 NW2d 80
(1995), vacated in part and remanded 453 Mich 946; 554 NW2d
898 (1996) .
SUMMARY: Injured person was entitled to present her expert's
testimony for the jury's consideration in her case for damages
incurred as a result of exposure to ethylene oxide because
that method was the appropriate way to challenge the expert's
opinions .
Feaster v Portage Pub Schools, 210 Mich App 643; 534 NW2d 242
(1995), reversed 451 Mich 351; 547 NW2d 328 (1996).
SUMMARY: The school district's policy of requiring proof of
residency to enroll children in the public schools was
rationally related to their policy of collecting tuition from
out of state students.
10
413
Nalepa v Plymouth-Canton Community School Dist, 207 Mich App
580; 525 NW2d 897 (1994), affirmed on other grounds 450 Mich
934; 548 NW2d 625 (1995).
SUMMARY : School district, board of education, and school
superintendent had absolute governmental immunity from
liability for wrongful death of second grader who hung himself
after his school showed a video in which a boy attempted
suicide by hanging.
Local 1064, RWDSU, AFL-CIO v Ernst £ Young, 204 Mich App 445;
516 NW2d 492 (1994), affirmed in part and reversed in part 449
Mich 322; 535 NW2d 187 (1995).
SUMMARY: A client's breach of contract claim against an
accounting firm was not governed by the two-year statute of
limitations for malpractice suits, but rather by one of
several other sections that ranged from three to six years and
did not bar the suit.
People v Paul, 203 Mich App 55; 512 NW2d 20 (1993) , reversed
444 Mich 949, 511 NW2d 434 (1994) .
SUMMARY: A trial court properly suppressed evidence that was
seized pursuant to a search warrant that was improperly issued
by a district court magistrate because no specific
authorization was obtained from a district court judge to
issue the warrant.
People v Lemcool, 200 Mich App 77; 504 NW2d 7 (1993), reversed
445 Mich 491; 518 NW2d 437 (1994).
SUMMARY: It was error for the trial court to grant reciprocal
discovery to prosecution. The trial court was required to
exercise judicial restraint and refuse to permit prosecutorial
discovery in the absence of statute or court rule.
Schippers v SPX Corp, 194 Mich App 52; 486 NW2d 89 (1992),
reversed 444 Mich 107; 507 NW2d 591 (1993) .
SUMMARY : Because a question of fact existed concerning whether
an employee had a reasonable belief that he could be fired
only for cause, it was for the jury to determine the facts and
circumstances that actually occurred.
11
414
People v Cobbs, 188 Mich App 324; 469 NW2d 47 (1991), reversed
4 4 3* Mich 276; 505 NW2d 208 (Mich. Aug 17, 1993).
SUMMARY: Defendant was improperly sentenced following guilty
plea for kidnapping and felonious assault where the trial
judge improperly negotiated a sentence agreement with
defendant, over the prosecutor's objections; thus, the
sentences imposed were invalid.
Schippers v SPX Corn, 186 Mich App 595; 465 NW2d 34 (1990) ,
vacated and remanded 439 Mich 895; 478 NW2d 439 (1991) .
SUMMARY: An employer's handbook, stating that disciplinary
action including discharge might result from the violation of
certain rules, raised a genuine issue of fact as to whether a
contract of employment providing termination only for just
cause existed.
Rouch v Enquirer & News of Battle Creek, 184 Mich App 19; 457
NW2d 74 (1990), vacated and remanded 440 Mich 238; 487 NW2d
205 (1992) .
SUMMARY: An individual was entitled to damages in its libel
action where he met his burden of proving that a newspaper
incorrectly reported that he was charged with sexual assault
and that the identification was by his own children.
People v Williams, 179 Mich App 15; 445 NW2d 170 (1989)
reversed 434 Mich 894; 453 NW2d 675 (1990) .
SUMMARY: Because it urged jurors to do their civic duty by
supporting the police, the prosecutor's argument was highly
prejudicial. It had the effect of improperly converting the
presumption of innocence into one of guilt and constituted
reversible error.
Krisfalusi v Krisfalusi, 178 Mich App 458; 444 NW2d 196
(1989), reversed 434 Mich 916; 456 NW2d 236 (1990).
SUMMARY: Michigan's usury statute did not apply to property
divisions in a divorce. Thus, in an ex-wife's petition to
enforce a divorce judgment the circuit court properly ordered
the ex-husband to pay the nine percent interest specified in
the settlement.
12
415
and (3) citations for significant opinions on federal or
state constitutional issues, together with the citation to
appellate court rulings on such opinions . If any of the
opinions listed were not officially reported, please provide
copies of the opinions .
People v Jones, 270 Mich App 208; 714 NW2d 362, (2006)
Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005)
In re McEvoy, 267 Mich App 55; 704 NW2d 78 (2005), lv den 474
Mich 1068; 711 NW2d 306 (2006)
People v Walker, 265 Mich App 530; 697 NW2d 159 (2005), held
in abeyance 705 NW2d 687 (2005)
People v Moorer, 262 Mich App 64; 683 NW2d 736 (2004), lv den
472 Mich 901; 698 NW2d 153 (2005), cert den Moorer v
Michigan, 126 S Ct 234, 163 L Ed 2d 218 (2005)
People v Jones, 260 Mich App 424; 678 NW2d 627 (2004)
People v Galloway, 259 Mich App 634; 675 NW2d 883 (2003), lv
den 470 Mich 890; 684 NW2d 266 (2004)
People v Rodriguez, 251 Mich App 10; 650 NW2d 96 (2002), lv
den People v Porter, 467 Mich 932; 655 NW2d 566 (2002) and
People v Rodriguez , 468 Mich 880; 659 NW2d 241 (2003)
Crego v Coleman, 232 Mich App 284; 591 NW2d 277 (1998), rev'd
463 Mich 248; 615 NW2d 218 (2000), cert den Crego v Coleman,
531 US 1074, 121 S Ct 767, 148 L Ed 2d 667 (2001)
People v Morey, 230 Mich App 152; 583 NW2d 907 (1998), aff'd
461 Mich 325; 603 NW2d 250 (1999)
Martinez v Ford Motor Co, 224 Mich App 247; 568 NW2d 396
(1997)
Hawkins v Dep' t of Corrections, 219 Mich App 523; 557 NW2d
138 (1996)
People v Mack, 218 Mich App 359; 554 NW2d 324 (1996) , lv den,
ordered not precedential 455 Mich 865; 567 NW2d 251 (1997)
13
416
Morris v Governor, 214 Mich App 604; 543 NW2d 363 (1995), gv
den 453 Mich 962; 557 NW2d 311 (1996)
Volkema v Dep' t of Natural Resources, 214 Mich App 66; 542
NW2d 282 (1995), aff'd in part & disapproved in part 457 Mich
886; 586 NW2d 231 (1998), cert den Volkema v Michigan, 525 OS
1040, 119 SCt 590, 142 LEd2d 533 (1998)
Feaster v Portage Pub Schools, 210 Mich App 643; 534 KW2d 242
(1995), rev'd 451 Mich 351; 547 NW2d 328 (1996)
16. Public Office : State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office .
I was an unsuccessful candidate for the Michigan Court of
Appeals in 1986.
17 . Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
I did not serve as a clerk.
2. whether you practiced alone, and if so,
the addresses and dates;
I have not practiced alone.
3 . the dates , names and addresses of law
firms or offices, companies or
governmental agencies with which you
have been connected, and the nature of
your connection with each;
1970 Internal Revenue Service
Cadillac Square Building
Detroit, MI 48226
Position: Estate and Gift Tax Examiner
14
417
1970- 71 Michigan Court of Appeals
Washington Square Building
109 West Michigan Ave .
Lansing, MI 48909-7522
Position: Prehearing Research Attorney
1971- 73 City of Grand Rapids
300 Monroe N.W.
Grand Rapids, MI 49503
Position: Assistant City Attorney
1973-78 VanderVeen, Freihofer & Cook
950 Union Bank Building
Grand Rapids, MI 49503
Position: Associate and Partner
1978-80 Michigan Supreme Court
525 W. Ottawa
G. Mennen Williams Building
Lansing, MI 48933
Position: Commissioner
1980 Office of the U.S. Attorney
Department of Justice
P.O. Box 208
Grand Rapids, MI 49501-0208
Position: Assistant U.S. Attorney.
1980-88 William G. Reamon, P.C.
161 Ottawa, N.W., Suite 200-C
Grand Rapids, MI 49503
Position: Associate
1989-Present Michigan Court of Appeals
5 Lyon, N.W., Suite 624
Grand Rapids, MI 49503
Position: Judge
b. 1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
After graduation from law school in 1970, I
was briefly an Estate and Gift Tax Examiner
for the IRS. This position involved review
and audit of federal estate and gift tax
returns .
15
418
1970 - 1971 - I was a Prehearing Research
Attorney for the Michigan Court of Appeals.
This was a central legal staff position in
which I reviewed briefs and lower court
records and conducted independent research of
cases on appeal, drafting reports for the
Court's judges and, often, proposed per
curiam opinions.
1971 - 1973 - I was an Assistant City
Attorney for the City of Grand Rapids
assigned to the Ordinance Enforcement
Division. I prosecuted all manner of
ordinance violations, including drunk
driving, misdemeanor assaults, housing and
zoning violations and the like. I was in the
courtroom daily and tried scores of jury and
non- jury cases.
1973 - 1978 - I was an associate and then a
partner at Vander Veen, Freihofer and Cook,
then one of the largest firms in west
Michigan. I was in the litigation group of
the firm and our trial practice was a general
one. My practice included insurance defense,
criminal defense, domestic relations,
commercial litigation (primarily construction
bond defense) , products liability defense,
bankruptcy and the representation of numerous
municipal governments, including Kent County
as well as city and township governments
throughout west Michigan. While at the firm,
I was appointed a Special Assistant Attorney
and defended two state worker's compensation
funds, the Second Injury Fund and the
Silicosis & Dust Disease Fund.
1978 - 1980 - I was a Commissioner of the
Michigan Supreme Court. As a staff attorney
to the Court, I conducted independent
research and review of applications for leave
to appeal, motions and administrative
matters, writing reports for the Justices
and, on request, drafting proposed per curiam
opinions. I also was one of two staff
attorneys who drafted the comprehensive staff
report to the Court which resulted in the
publication and adoption of the total
revision of the Michigan Court Rules,
16
419
effective 3/1/85.
1980 - I joined the U.S. Attorney's Office in
the Western District of Michigan where I
represented the federal government in both
criminal and civil cases, working closely
with various investigative agencies such as
the FBI, the DEA and the Postal Service. I
left to take an opportunity in private
practice .
Late 1980 - 1988 - I was with a small
personal injury law firm, William G. Reamon.
P.C. Our practice was exclusively in the
plaintiff's personal injury area. My primary
areas of practice were medical malpractice
and automobile negligence and no-fault,
although I also did some product liability
work and some worker's compensation.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
1973-78 - My typical clients during this
period included in-surance companies,
municipal governments, criminal defendants,
creditors, debtors, business owners, and
individuals .
1980-88 - My typical clients during this
period included injured individuals who were
mostly working people. This was exclusively
a plaintiff's personal injury practice and I
concentrated my work in medical malpractice,
automobile negligence and no-fault, although
I also handled other types of liability
cases .
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance, giving
dates .
I appeared in court regularly during most of
my practice before joining the bench in 1988.
17
420
2 . What percentage of these appearances was in :
(a) federal courts; 20%
(b) state courts of record; 80 %
(c) other courts .
3. What percentage of your litigation was:
(a) civil; 80%
(b) criminal. 20%
4 . State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
I estimate that I tried nearly 300 cases to
verdict. In most, I was sole counsel. In a
few, I was chief counsel or associate
counsel .
5 . What percentage of these trials was :
(a) jury; 70%
(b) non- jury. 30%
18. litigation : Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties .
My litigation practice ended in 1988 when I was elected to the
Michigan Court of Appeals; however, following are five
significant matters I personally handled during my practice.
1. Anderson v Volkswagen of America, unpublished opinion per
curiam of the Court of Appeals, issued 10/19/78 (Docket No.
31240) .
18
421
The plaintiffs were driving a Volkswagen bus when it was
struck, head-on by an oncoming car. The driver was killed and
the passenger seriously injured. The driver and passenger
were an elderly couple.
Plaintiffs sued the van manufacturer, Volkswagen of
America, on a theory of crash worthiness because the blunt,
front end of the van had no built-in protection for occupants
in a head-on collision. The van front collapsed on the
occupants from the force of the collision, causing their
injuries .
This was, to the best of my knowledge, the first case in
Michigan tried on a theory of crash worthiness and the first
to go to appellate decision.
I was co-counsel for defendant, the manufacturer, Volks-
wagen of America.
My responsibilities included drafting all pleadings,
briefs, and jury instructions at trial and on appeal. I also
handled motion arguments and some trial testimony.
Jury verdict for plaintiffs: $150,000. Affirmed on appeal.
a) Dates of trial: 11/19/76
b) Name of the court and judge: Muskegon Circuit Court,
Honorable John H. Piercey
c) Name, address, telephone numbers of counsel and co-
counsel :
Co-counsel :
Peter R. Tolley
1700 E. Beltline Ave., N.E., Suite 200
Grand Rapids, MI 49525
(616) 447-1800
Plaintiffs' counsel:
Robert J. Van Leuven
410 Ruddiman Dr.
N. Muskegon, MI 49445
(800) 255-5066
2 . Rush v County of Ionia, not reported, Ionia Circuit Court,
Docket I84-B-907 5-NZ .
Plaintiffs purchased property in rural Ionia County. The
property provided them with a bluff overlooking a trout stream
19
422
where they built their home. After completion of the house,
the stream below the house became a swamp when a downstream
owner built a dam to generate electricity pursuant to a
reservation of flowage rights. The abstract of title obtained
by the plaintiffs before they purchased the property did not
disclose the reservation of flowage rights, which permitted
construction of the dam.
The cause of action was for negligent preparation of the
abstract of title, a novel legal theory in Michigan law.
I represented the plaintiffs landowners.
I tried the case to jury verdict. Co-counsel drafted
pleadings, briefs and instructions.
Jury verdict for plaintiffs in the amount of $75,000 which
was the exact amount I requested during final argument.
a) Dates of trial: November 1988
b) Name of the court and judge: Ionia Circuit Court,
Visiting Judge Paul O'Connell
c) Name, address, telephone numbers of counsel and co-
counsel:
Co-counsel :
Sharon M. Hanlon
Zelman & Hanlon
5633 Naples Blvd.
Naples, FL 34109
(239) 598-3222 (W) (239) 592-6353 (H)
Counsel for Defendants :
William A. Brengle
1700 E. Beltline Ave., N.E., Suite 200
Grand Rapids, MI 49525
(616) 447-1800, ext 467
Robert E. Attmore
13404 Lime Lake Dr.
Sparta, MI 49345
(616) 696-6096
3. Atlanta Int' 1 Ins. Co. v Faulkner, 821 F2d 649 (CAS, 1987)
(unpublished decision) .
This was a declaratory judgment action by the insurance
company on an insurance policy issued to Faulkner, an
20
423
independent trucker who negligently backed an unlit tractor
trailer across a dark rural road. Maria and Gary Schaeffer
drove into the unlit trailer positioned across the dark road
and were killed instantly. They were survived by three young
children .
In addition to issues of coverage under the insurance policy,
plaintiff claimed that the ICC rules and regulations did not
apply, an argument which was rejected by the trial and
appellate courts.
I represented the personal representative of the decedents'
estates.
I argued the motion for summary judgment and the appeal in the
U.S, Court of Appeals for the Sixth Circuit. I was the
primary author of the pleadings and briefs.
The U.S. District Court for the Western District of Michigan
denied plaintiff's request for declaratory judgment.
The U.S. Court of Appeals for the Sixth Circuit affirmed the
District Court.
a) Dates of trial: 1985
b) Name of the court and judge: U.S. District Court for
the Western District of Michigan, The Honorable Benjamin
Gibson, U.S. Court of Appeals for the Sixth Circuit, before
Merritt and Martin, Circuit Judges, and Brown, Senior
Circuit Judge
c) Name, address, telephone numbers of counsel and co-
counsel :
Co-counsel :
Sharon M. Hanlon
Zelman & Hanlon
5633 Naples Blvd.
Naples, FL 34109
(239) 598-3222 (W) (239) 592-6353 (H)
Plaintiff's Counsel:
Arthur W. Brill
151 S. Rose St., Suite 850
Kalamazoo, MI 49007
(269) 343-1338
4. Beaton & Jackman v Mecosta County General Hosp, not reported,
Mecosta Circuit Court, Docket #85-5817-NM.
21
424
Malpractice and assault and battery arising out of actions by
registered nurse anesthetist during surgery. Plaintiffs
alleged that the individual defendant sexually assaulted them.
The facts supporting the theories of recovery were unusual and
proofs were difficult because defendant's actions occurred as
plaintiffs were being anesthetized.
I represented the plaintiffs.
I handled all document drafting and court appearances.
a) Dates of trial: The case settled before trial.
b) Name of the court and judge: Mecosta Circuit Court, The
Honorable Lawrence Root
o) Name, address, telephone numbers of counsel and co-
counsel:
Defense Counsel:
Richard B. Gustafson
28 Mallard Cove Ct.
Saginaw, MI 48603
Telephone Unlisted
5 . Saldibar v Community Med Clinic, PC, not reported, Allegan
Circuit Court, Docket #86-8753-NM.
This was a medical malpractice case in which the decedent's
cancer went undetected in spite of numerous abnormal PAP smear
reports and the presence of cervical polyps. Mrs. Saldibar
was survived by her husband and eight children.
This was one of a number of obstetrical/gynecological medical
malpractice cases I handled. In the 1980' s, cases based on
medical malpractice in general, and ob/gyn claims in
particular, were not commonplace. Experts who were willing to
testify for plaintiffs were not readily available. Because of
the number of health care providers involved, the delay in
detecting the abnormal pap smears and diagnosing the cancer,
and the lack of adequate record keeping, it was very difficult
to trace responsibility for the medical negligence. The
defendants included physicians, a pathology lab, and a non-
profit gynecological health care agency, which provided
services for low-income women.
I represented the plaintiff.
Until my election in 1988, I was primary counsel for the
22
425
plaintiff, drafting pleadings/briefs., conducting discovery and
appearing in court for motion hearings and conferences,
a) Dates of trial: Settled by co-counsel after I joined
the bench.
b) Name of the court and judge: Allegan Circuit Court, The
Honorable George Corsiglia
c) Name, address, telephone numbers of counsel and co-
counsel
Co-counsel :
William G. Reamon, Sr. (Deceased)
Sharon M. Hanlon
Zelman & Hanlon
5633 Naples Blvd.
Naples, FL 34109
(239) 598-3222 (W) (239) 592-6353 (H)
Defense counsel:
Thomas R. Fette
720 State St.
St. Joseph, MI 49085
(269) 983-0755
Lester J. Tooman
314 Trowbridge St.
Allegan, MI 49010-0239
(269) 673-2136
Donald Souter
2637 Littlefield Dr., N.E.
Grand Rapids, MI 49506
(616) 949-9373
Peter R. Tolley
1700 E. Beltline N.E., Suite 200
Grand Rapids, MI 49525
(616) 447-1800
William F. Mills
50 Monroe N.W., Suite 700w
Grand Rapids, MI 49503
(616) 235-5500
Richard G. Leonard
161 Ottawa N.W., Suite 600
Grand Rapids, MI 49503
(616) 235-3500
23
426
Paul M. Oleniczak
250 Monroe N.W., Suite 200
Grand Rapids, MI 49503
( 616 ) 458-5461
19. Legal Activities : Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
While an associate at VanderVeen, Freihofer & Cook, I drafted
the first affirmative action policy for Kent County.
Because my legal practice before I was elected to the Michigan
Court of Appeals was almost exclusively trial/litigation
oriented, I cannot point to other significant matters that did
not involve litigation. Since my election in 1988, all of my
work has involved review of litigated matters.
24
427
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
None .
2 . Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you. have been nominated.
In resolving any conflicts of interest, I will comply with
the Ethics Reform Act of 1989, 28 USC 455, and 28 USC 144,
addressing the disqualification of judges, the Code of
Conduct for United States Judges, and all other applicable
requirements .
In my service on the Michigan Court of Appeals since 1989, I
have recused myself from cases less than a dozen times. On
those occasions when I have done so, it was because of
personal relationships with a party and/or attorney. I
don't believe that I have recused myself because of a
perceived conflict arising out of the nature of the
litigation or because of financial arrangements, and no
motion has ever been filed seeking my recusal. I expect
that, if confirmed, I will continue to review each situation
on a case-by-case basis with the ultimate goal of ensuring
that there is no reason to believe I could not consider a
matter with complete impartiality.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No .
25
428
4, List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report
5, Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I have never had any formal role in a political campaign. I
have occasionally supported judicial candidates in
nonpartisan campaigns.
26
429
FINANCIAL DISCLOSURE REPORT
NOMINATION FILING
Report Required by the Ethics
in Government Act of 1 978
(5 U.S.C. app. §§ 101-111)
1 . Person R;rp rtmg (Last name. First name. Middle initial)
Neff, Janet T
2. Court or Organization
US Dist Ct Western Dist of MI
3. Date of Report
7/24/2006
4. Title (Art icb IH Judges indicate active or senior status;
magistrate judges indicate full- or part-time)
District JudgeNominee
5. ReportType (check appropriate type)
(S) Nomination, Date 6/28/2006
Q Inhiai O Annual Q Pina!
6. Reporting Period
1/1/2005
to
6/30/2006
? Chambers or Office Address
5 Lyon St., N.W., Suite 624
Grand Rapids, Ml 49503
8. On the basis of the inforoiation contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
! IMPORTANT NOTES The instructions accompanying this form must be followed Complete all parts, checking the NONE box for each part
| where you have no reportable information. Sign on last page jgH|
I. POSITIONS. ( Reporting individual only; see pp. 9- LI of filing instructions)
□ NONE - (No reportable positions.)
Olga C. Nebiolo Revocable Living Trust
n. AGREEMENTS. (Reporting individual only; see pp. 14- 16 of filing instructions)
[Zl NONE - (No reportable agreements.)
J2AIE
Michigan Judges Retirement System - Pension upon Retirement from Michigan Court of Appeals
430
'HNA’V CtAL DISCLOSURE REPORT
Name of Person Reporting
Neff, Janet T
Date of Report
7/24/2006
III. N OISf-INVEST MENT IN COME. (Reporting individual and spouse; see pp. 1 7-24 of filing instructions)
A. Filer** sRon-Investment Income
■~.j NONJI - (No reportable non-investment income.)
DAIE SOURCE ANP TYPE GROSS INCOME
(yours, not spouse's)
1.
3)04
State of Michigan
$151,822
2,
2)05
State of Michigan
$153,211
3.
:m
State of Michigan (to 6/30/06)
$81,545
4.
2905
Olga C. Nebiolo Revocable Living Trust
$30,000
5.
2906
Olga C Nebiolo Revocable living Trust
$48,000
6.
2905
American Investors Life (Annuity 378305)
$4,934
7. ■'
2005
American Investors Life (Annuity 378 1 60)
$8,036
8.
2005
American Investors Life (Annuity 378305 & 378 160)
$1,149
9.
2005
Transamerica (Annuity 26233273)
$13,470
10.
2005
Hartford Life Insurance (Policy GL 0674862)
$3,800
B. Spouse's Non-Ilivestment Income - (If you were manied during any portion of the reporting year, please complete this section, Dollar amount
not required except for honoraria.)
I ...] NONE - (No reportable non-investment income.)
32AIE
!• 2005 State of Michigan Pension
2. 2006 State of Michigan Pension
431
'FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Neff, Janet T
7/24/2006
IV. REIMBURSEMENTS -- transportation, lodging, food, entertainment.
(include those to spouse and dependent children. See pp. 25-27 of instructions.)
Li NONTE - (No such reportable reimbursements.)
S . QURC . E DESCRIPTION
1 . Exempt
TIN AM C1AL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Neff, Janet T
7/24/2006
V. GIFT'S. (Includes those to spouse and dependent children. See pp. 28-31 of instructions.)
L NONE - (No such reportable gifts.)
SQURSE DESCRIPTION
I. Exempt
VI, LIABILITIES. (Includes those of spouse and dependent children. See pp. 32-34 of instructions.)
® NONE - (No reportable liabilities.)
CREDITOR DE SC R I PTIO N VALIIF. code:
1.
432
FINANCIAL DISCLOSURE REPORT
Page 1 of 1
VII. INVESTMENTS and TRUSTS - mco
Name of Person Reporting
Date of Report
Neff, Janet T
7/24/2006
=. value, transcations (includes those of the spouse and dependent children. See pp. 34-37 of filing instraetiore.)
A.
IDeseptkm of Assets
(inditing trust assets)
B.
Income during
reporting period
C.
Gross value at end of
reporting period
D.
Transactions during reporting period
If not exem
t from disclosure
l^lace'(X)“ after each asset exempt
ffc-omrior disclosure
Amount
(A-H)
Type (e.g.
dh-. rent, or
iirt.)
Value
Code 2
(J-P)
Value
Method
Code 3
(Q-W)
Type (e.g.
buy, sell,
merger,
redemption)
(2)
Date:
Month -
Day
(3)
Value
Code 2
<J-P>
(4)
Code
WA-
(5)
Identity of
buyer/seller
(if private
transaction)
J "NONE reportable income, assets, or transactions)
I , US. X reaniry Bonds
a
Interest
B
B
Exempt
■
■
2 , IRA # 1 Pud ential Money Market and Apple
Commons took
m
Dividend
K
T
Exempt
■
3 . IRA /A 2 Prudential Money Market
A
Interest
1
T
Exempt
4 . 40 IK. - Didge & Cox, Columbia Acorn,
Europacrlo Growth
A
Dividend
O
T
Exempt
5 . 401K (continued) - STI Small Cap Value Fund
Exempt
6. 457
A
Dividend
L
T
1 income' Gain Codes
(Sec Columns fit and DU
3 Value Codes
(See Columns C 1 and {.»)
3 Value Method Codes
(Sm Column 021
A $ 1. 000 er less
r tw nous 100, 000
I • *15.000 or kts*
N - *2 30,1)00. S3 00.000
Pi ~ *25,000.00 l-SSM)00,<»0
O - Appraisal
U -Hook Value
B '•Sl.001-S2.500
G «*100.00U*I, 000,1100
K -S 15,001 -*50.000
O “t500.00u*lj000,000
R - Cent (Real Estate Only)
V -Other
C **3,501 -$5,000
ftl - SI, 000,001 -S5.000.fKW
l * S50.00US100.000
PI - *1,000,001-55,000.000
P4 “IMore than $50,000, 000
S - Assessment
D - S5.00U$15,000
H2 - Mote than SS.000,000
M ■* H100.00US250.000
P2 - 55,000,001 -325.000,000
T - CastvMarket
E
- S!5.O01-S5O,O00
W - Estimated
433
UNAfr CAL' DISCLOSURE REPORT Name of Person Reporting
Neff, Janet T
VEI, ADDITIONAL INFORMATION OR EXPLANATIONS 0^ part or Report. >
' FIN AN' CAL DISCLOSURE REPORT
IX. CER-TiFICATION.
I certify' tiat all information given above (including information pertaining to my spouse and minor or dependent children, if
any) is accurate, true, and complete to the best of my knowledge and belief and that any information not reported was withheld
because it met applicable statutory provisions permitting non-disclosure.
Date of Report
7/24/2006
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported ar*z it compliance with the provisions of 5 U.S.C. § 501 et. seq., 5 U.S.C. § 7353, and Judicial Conference regulations.
Signature.
Dat e *7 )c>H j
NOTE: AN^NUrVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY
BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
434
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household
ASSETS
Cash on hand and in banks
U.S. Government securities-add schedule
Listed securities-add schedule
Unlisted securities-add schedule
Accounts and notes receivable:
Due from relatives and friends
Due from others
Doubtful
Real estate owned-add schedule
' Real estate mortgages receivable
Autos and other personal property
Cash value-life insurance
Other assets itemize:
457 Account
Individual Retirment Account
LIABILITIES
1 3 727 Notes payable to banks-secured
70 000 Notes payable to banks-unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
Other unpaid income and interest
Real estate mortgages payable-add
schedule
450 000 Chattel mortgages and other liens payable
Other debts-itemize:
435
FINANCIAL STATEMENT
NET WORTH SCHEDULES
U.S. Government Securities
Series EE Bonds $ 70,000
Real Estate Owned
Personal residence $ 450,000
Real Estate Mortgages Payable
Personal residence S 254,460
436
III. GENERAL (PUBLIC)
I . An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
For a number of years, when my children were in elementary
and middle school, my primary volunteer work involved their
school and sports activities. I continued these activities
after they entered high school, but was also able to resume
other pro bono and community volunteer activities.
I have participated several times as a panelist on "Ask the
Lawyers" a public interest TV program sponsored by the Grand
Rapids Bar Association and was an organizer and participant
in a program called "The Peoples' Law School", also
sponsored by the Grand Rapids Bar Association.
I have served on numerous bar association committees, task
forces, and groups, both formal and informal. For instance,
in 1988 I was very active in the activities of the Grand
Rapids Bar Association to support a ballot proposal to build
a new Kent County jail. I am an annual contributor to the
Grand Rapids Bar Association Pro Bono program, which
supports the provision of free legal services throughout
Kent County.
I have served on the Boards of Directors of the Easter Seal
Society, the Women's Resource Center, Junior Achievement and
the United Way of Kent County as well as on the Board of
Trustees of the Winchester Scholarship Fund. I have been a
member of the YWCA Nominating Committee and the Committee of
Visitors of the Wayne State University Law School.
From 1988-91, I was a faculty member of the Federal Trial
Skills Work Shop, Federal Bar Association, Western District
of Michigan.
In 1995, I co-chaired Women Building the Dream, a committee
of Habitat for Humanity of Kent County, which constructed
27
437
Michigan's first house built entirely by women. I worked on
the construction of the house and several others. In 1996,
we constructed a second house built entirely by women, and
in 2000, participated in the Kent County "First Lady's
Build", a project of Habitat for Humanity which resulted in
construction of a house in each of the 50 states under the
sponsorship of women governors and first ladies.
I was a member of the Board of Governors of the Grand Rapids
Masonic Children's Learning Center, which provides one-on-
one tutoring for dyslexic children at no cost to them or
their parents/guardians . This is a national program in
which the Masonic order has opened centers around the
country to address dyslexia, a serious. learning disability.
I am not a mason or member of a related order.
I am currently a member of the Grand Rapids Bar
Association's Diversity Committee which seeks to attract and
maintain a diverse legal community of attorneys, paralegals,
legal secretaries, and support staff in the Greater Grand
Rapids area.
2, The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates -- through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership.
What you have done to try to change these policies?
No.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
There is no selection commission that I am aware of and none
which recommended me for this nomination. When I learned of
a potential compromise between the current administration
and Michigan' s two senators to make progress in filling
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438
current vacancies on the district court, I contacted Senator
Levin and Senator Stabenow to express my interest in the
nomination. They decided to submit my name to the White
House Counsel's office for consideration, and on 4/27/06, I
sat for an interview with members of the White House
Counsel's office and the Department of Justice. Since then
I have had numerous contacts with members of the Department
of Justice's Office, and with members of the White House
Counsel's Office. I have also spoken briefly with Senator
Levin .
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
5 . Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped-many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this Ajudicial activism® have
been said to include:
a . A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
29
439
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e . A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
My experience as an appellate judge since 1989 has
reinforced my long-held view that a judge's role is to
enforce the rules, not to make them. The function of a
judge is to focus narrowly on the dispute at issue in
each case, learning its unique facts, reviewing the
issues properly raised by the parties, and carefully
applying the law solely to the facts and issues raised.
It is important to determine whether issues are
properly raised and preserved and to establish that the
dispute in every case is within the court' s
jurisdiction and is brought by parties who have proper
standing. Judges are not policy makers and must
operate within the constraints established by statute
and precedent.
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440
X t Janet '
statement
August 9,
AFFIDAVIT
Neff, do swear that the information provided in this
is, to the best of my knowledge, true and accurate.
■ioftn C Coraber, Nobly Public
san et McNgan. County of Ottawa
My CoirartMlon ExpiMS 5/26/201 1
Acting In tha County of Tvfiu
441
Senator Brownback. Thank you. Welcome here.
Judge Southwick?
STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE DIS-
TRICT JUDGE FOR THE SOUTHERN DISTRICT OF MIS-
SISSIPPI
Judge Southwick. Senator, I appreciate your chairing this hear-
ing today. I think you opened with the phrase, and if you do not
mind my borrowing it, that this is a very big deal today to have
this hearing and to have the opportunity to discuss whatever comes
to the committee’s and your mind regarding our background.
I am honored beyond, I think, her understanding, that my
daughter Cathy has joined us today. She flew up from Houston
early this morning. It required her getting up at 3:30 in the morn-
ing to catch a 5:30 flight, and that is doing it for the team. Thank
you, Cathy.
Senator Brownback. Cathy, thank you. And we have extra coffee
if you need it.
[Laughter.]
Welcome. Delighted you are here.
Judge Southwick. Her mother is back in our hometown, Jack-
son. My wife’s mother has been ill and she is helping out with her.
We have one more child, Philip, who is an architect in Austin who
is doing his client’s business today. I respect all of their decisions,
and I am glad Cathy is here.
Also with me today, coincidentally — he told me he flew up just
for the occasion and I will accept that — is Andy Taggert, who is out
in the audience. He is a supervisor from a county just north of
Jackson and is one of the outstanding leaders in Mississippi polit-
ical life today, and an outstanding lawyer as well.
I want to thank the committee, but I want to thank two Senators
in particular who have addressed you already, Senators Cochran
and Lott. They have been stalwarts in my support through this
process and I am extraordinarily pleased to have their support.
President Bush’s nomination of me is an honor that almost goes be-
yond description. So with my personal comments, I am ready for
whatever questions you might have.
[The biographical information of Leslie Southwick follows:]
442
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
PUBLIC
1. Name : Full name (include any former names used).
Leslie Harburd Southwick
2. Position : State the position for which you have been nominated.
United States Court of Appeals for the Fifth Circuit
3. Address : List current office address. If city and state of residence differs from your
place of employment, please list the city and state where you currently reside.
Mississippi College School of Law
151 East Griffith Street
Jackson, MS 39201
4. Birthplace : State date and place of birth.
1950, Edinburg, Texas
5. Marital Status : (include name of spouse, and names of spouse pre-marriage, if
different). List spouse’s occupation, employer’s name and business address(es). Please,
also indicate the number of dependent children.
Wife: Sharon Elaine Polasek Southwick
Marketing Assistant
W.S.Quinn CLU
405 Briarwood Drive, Suite 104B
Jackson, Mississippi 39206
Two children (No longer dependent children)
6. Education : List in reverse chronological order, listing most recent first, each college,
law school, or any other institution of higher education attended and indicate for each the
dates of attendance, whether a degree was received, and the date each degree was
received.
University of Texas School of Law, 1972-75; J.D, May 1975
Rice University, 1968-72; B.A. May 1972
443
7. Employment Record : List in reverse chronological order, listing most recent first, all
governmental agencies, business or professional corporations, companies, firms, or other
enterprises, partnerships, institutions or organizations, non-profit or otherwise, with
which you have been affiliated as an officer, director, partner, proprietor, or employee
since graduation from college, whether or not you received payment for your services.
Include the name and address of the employer and job title or job description where
appropriate.
2007-present; Mississippi College School of Law; visiting professor
1995 - 2006; Mississippi Court of Appeals; Judge
1998 - 2006, 1985 - 1989; Mississippi College School of Law; Adjunct Professor
2004-2006; United States Army; Deputy Staff Judge Advocate, Staff Judge Advocate
1989 - 1993; United States Department of Justice, Civil Division; Deputy Assistant
Attorney General
1977 - 1989; Brunini, Grantham, Grower & Hewes, PLLC; Associate (1977-1983)
Partner (1983-1989)
1976 - 1977; United States Court of Appeals for the Fifth Circuit; Law Clerk to the
Honorable Charles Clark
1975 - 1976; Texas Court of Criminal Appeals; Law Clerk to the Honorable John F.
Onion, Jr.
1974 - 1975; University of Texas School of Law, Teaching Quizmaster (instructor of
legal research and writing for one section of first-year law students).
1974; United States Attorney’s Office, Eastern District of Texas; summer law clerk
1973; International Paper Company; box assembler, summer
1972; Polasek Air Conditioning; central heat and air installer, summer
Charles Clark American Inns of Court, president, 2006
Jackson Servant Leadership Corps: President 2001-2003, Member 1998-2003.
Hinds County Mental Health Association: President 1981-82.
8. Military Service and Draft Status : Identify any service in the U.S. Military, including
dates of service, branch of service, rank or rate, serial number (if different from social
security number) and type of discharge received.
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444
Judge Advocate General’s Corps, U.S. Army Reserves (1992-1997), Mississippi National
Guard (1997-present). Lieutenant Colonel, Deputy Staff Judge Advocate (August 2004-
July 2005), then Staff Judge Advocate (July-Dee. 2005), 1 55th Brigade Combat Team,
mobilized in support of Operation Iraqi Freedom, August 2004; served in Iraq, January-
December 2005; released from active duty January 2006. Currently assigned to Joint
Forces Headquarters, Jackson.
9. Honors and Awards : List any scholarships, fellowships, honorary degrees, academic or
professional honors, honorary society memberships, military awards, and any other
special recognition for outstanding service or achievement.
Judicial Excellence Award, Mississippi State Bar, 2004.
American Library Association "Best Reference Work of the Year" award in 1985, for
Presidential Also-Rans & Running Mates, 1788-1980 (first edition 1984, revised
1998)
Volunteer of Year, Jackson Mental Association, 1981 & 1985.
Usual military awards, including Meritorious Service Medal in 2005.
10. Bar Associations : List all bar associations or legal or judicial-related committees,
selection panels or conferences of which you are or have been a member, and give the
titles and dates of any offices which you have held in such groups.
Texas State Bar, 1975-1980
Mississippi State Bar 1977-present
Charles Clark American Inns of Court: President, 2006-; Program chairman, 2003-2004;
Bencher, 1995-.
Criminal Code Revision Group, Miss. Judicial Advisory Study Committee, 1996-present;
Citizens Task Force for Correctional Reform (faith-based prison initiative), 1998-2000;
Curriculum Committee, American Bar Association’s Section on Legal Education, 1998-
2002 .
American Law Institute, 2001- .
Federalist Society, 1990-approx.l998.
11. Bar and Court Admission :
a. List the date(s) you were admitted to the bar of any state and any lapses in
membership. Please explain the reason for any lapse in membership.
Texas State Bar, 1975-1980, dropped membership because was remaining in
Mississippi.
Mississippi State Bar, 1977-present
b. List all courts in which you have been admitted to practice, including dates of
admission and any lapses in membership. Please explain the reason for any lapse
3
445
in membership. Give the same information for administrative bodies that require
special admission to practice.
Texas Supreme Court, 1975. After dropped membership in Texas Bar, my
admission to practice before the Texas Supreme Court may have lapsed.
Mississippi Supreme Court, 1977-present.
Mississippi circuit and chancery courts, 1977-present.
U.S. Court of Appeals, Fifth Circuit 1977-2003, lapsed because had not updated
my address and clerk’s office could not locate me when periodic renewal notice
was sent.
U.S. District Court, Southern District of Mississippi 1978-1992, lapsed when re-
registration occurred in May 1992 and the mailing was sent to my former law
firm; I was in Washington, D.C. at DOJ in 1992.
U.S. Army Court of Military Review (now Army Court of Criminal Appeals)
June 1994 - present.
U.S. District Court, D.C. Practiced there from 1989-93 while at DOJ. The
court’s records list me as a government attorney authorized to appear but not
formally admitted.
12. Memberships ;
a. List all professional, business, fraternal, scholarly, civic, charitable, or other
organizations, other than those listed in response to Questions 10 or 1 1 to which
you belong, or to which you have belonged, or in which you have significantly
participated, since graduation from law school. Provide dates of membership or
participation, and indicate any office you held. Include clubs, working groups,
advisory or editorial boards, panels, committees, conferences, or publications.
Jackson Roman Catholic Diocese Fitness Review Committee, and Fitness Review
Administrator, 2001-2004.
Jackson Servant Leadership Corps: President 2001-2003, Member 1998-2003.
Hinds County Mental Health Association: President 1981-82, Member 1978-84.
b. The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion. Please
indicate whether any of these organizations listed in response to 12a above
currently discriminate or formerly discriminated on the basis of race, sex, or
religion - either through formal membership requirements or the practical
4
446
implementation of membership policies. If so, describe any action you have taken
to change these policies and practices.
I have not belonged to any organization that discriminates in these ways.
13. Published Writings and Public Statements :
a. List the titles, publishers, and dates of books, articles, reports, letters to the editor,
editorial pieces, or other published material you have written or edited, including
material published only on the Internet. Please supply four (4) copies of all
published material to the Committee.
Legal Writings
1 . Separation of Powers at the State Level, Part II: Service in Civilian Public Office and
in the National Guard, 74 Miss. L. J. 47 (2004).
2. Recent Trends in Mississippi Judicial Rule Making: Court Power, Recusals, and
Expert Testimony, 23 Miss. C.L.Rev. 1 (2003).
3. Separation of Powers at the State Level [Part I]: Interpretations and Challenges in
Mississippi, 72 Miss. L.J. 927 (2003).
4. Military Justice for Terrorists and the National Guard: Comparisons and a
Mississippi Case Study , 72 MISS. L.J. 781 (2002).
5. The Least of Evils for Judicial Selection , 21 MISS. C.L.REV. 209 (2002).
6. A Modest Proposal For Clarity in Compensation Law, 14 Miss. C. WORKERS'
Compensation Seminar (2002).
7-9. Three chapters for the ENCYCLOPEDIA OF MISSISSIPPI Law: Administrative Law,
Statutory Interpretation, and Unemployment Compensation (West Pub. 2001-2002).
1 0. The Big Case on Appeal, XLV Miss. Lawyer 24 ( 1 999).
11. Mississippi Supreme Court Elections: A Historical Perspective 1916-1996, 18 Miss.
C.L.Rev. 115(1998).
12. The Mississippi Court of Appeals: History, Procedures, & First Year’s
Jurisprudence, 65 MISS. L.J. 593 (1996).
13. A Tribute to Chief Judge Charles Clark, 12 Miss. C.L.Rev. 355 (1992).
14. Methods of Constitutional Revision: Which Way Mississippi?, 56 Miss. L.J. 17
(1986).
5
447
15. State Constitution Revision: Mississippi & the South, XXXII Miss. Lawyer 21
(1985).
Historical Writings
1 . Presidential Also-Rans and Running Mates, 1 788-1996 (McFarland & Co.: Jefferson,
N.C. 1998, first edition 1984; supplement for 2000 election published in 2004 by Green
Bag Journal of Law).
2. The Colonel, the Judge, & the Bartender: The Presidential Election of 1904, XXVI
(no. 2) Theodore Roosevelt Assn Journal 3 (2004).
3. A Judge Runs for President: Alton Parker ’s Road to Oblivion, 5 GREEN Bag JOURNAL
of Law 2d 37 (2001),
4-6. Articles on Kenneth Anderson, Peter Grayson, and Robert Wilson published in The
New Handbook of Texas (1996).
7-9. “Robert Wilson & the Texas Election of 1838,” “James Collinsworth,” and “Peter
W. Grayson,” all published in the Houston Review (199 1-1 992).
10. “Kenneth L. Anderson: Last Vice President, Almost First Governor of Texas,”
published in the East Texas Historical Journal (1989).
Newspaper and newsletter articles and columns
1. “Speak No Evil, Spend no Fortune, and Win: First Amendment Issues in Judicial
Elections,” Professional Responsibility News (Federalist Society) (Fall 2000).
2. “Separation of Powers: Three Recent Challenges in Mississippi,” Hinds County Bar
Ass’n (newsletter) (Aug. 2000).
3. “In Case Some Forgot, George Bush Did a ‘Superb’ Job in Many Ways,” (Jackson,
Miss.) Clarion-Ledger (Oct. 18, 1993), at 7A.
4. ‘“Spare Tires’ of the Past Got Kicked as Much as Quayle,” Wall Street Journal
(Nov. 1, 1988),atA30.
5. “The 1988 Republican National Convention,” Hinds County Bar Ass’n News Oct.
1988.
6. "A New Constitution?" Jackson Young Lawyers Ass’n Newsletter Jan. 1987.
7. “Don’t Fight Constitution’s Rising Tide,” (Jackson, Miss.) Clarion-Ledger (Jan. 25,
1987), at 1-H.
8. “Reforming Constitution Path to Righting Power Imbalance,” (Jackson, Miss.)
Clarion-Ledger (Sept. 2, 1986), at 7 A.
6
448
b. Please supply four (4) copies of any reports, memoranda or policy statements you
prepared or contributed in the preparation of on behalf of any bar association,
committee, conference, or organization of which you were or are a member. If
you do not have a copy of a report, memorandum or policy statement, please give
the name and address of the organization that issued it, the date of the document,
and a summary of its subject matter.
I have not made any such reports or other statements.
c. Please supply four (4) copies of any testimony, official statements or other
communications relating, in whole or in part, to matters of public policy or legal
interpretation, that you have issued or provided or that others presented on your
behalf to public bodies or public officials.
While at the Department of Justice in 1989-93, 1 testified at least four times
before congressional committees. I do not have copies of any prepared statements
that were submitted with the one exception noted below.
1) House Committee on the Judiciary, Subcommittee on Crime, on May 17, 1990, 1
was scheduled as a witness about the Anabolic Steroids Control Act of 1990, H.R. 4658.
As I recall, my prepared statement was delivered late to the subcommittee and I was not
allowed to testify.
2) House Committee on the Judiciary, Subcommittee on Criminal Justice, on July 1 1,
1990, on a panel with James G. Richmond, Special Counsel for Financial Institutions,
U.S. Department of Justice; and Paul L. Maloney, Deputy Assistant Attorney General,
Criminal Division. We discussed DOJ’s efforts to combat financial institution fraud.
3) Senate Committee on Appropriations, Subcommittee on Treasury, Postal Service,
and General Government, on February 19, 1991, testified on the implementation of the
Federal Employee Drug Testing program, along with several other witnesses from the
Administration. I do not recall the specific issues addressed at the hearing.
4) Senate Judiciary Committee, Subcommittee on the Constitution, on July 30, 1991,
testified at a hearing that examined First Amendment implications of the Supreme Court's
then-recent decision in Rust v. Sullivan, 500 U.S. 173 (1991), which upheld regulations
forbidding recipients of Federal funding for family planning services from encouraging
or promoting abortion. A primary area of interest for the subcommittee was whether Rust
was precedent for Congress’s imposing other limits on the speech that it funded, such as
of libraries and art. I stated the Administration’s initial position that Rust was support for
such limits. I have a copy of my prepared statement.
d. Please supply four (4) copies, transcripts or tape recordings of all speeches or
talks delivered by you, including commencement speeches, remarks, lectures,
panel discussions, conferences, political speeches, and question-and-answer
sessions. Please include the date and place where they were delivered, and
7
449
readily available press reports about the speech or talk. If you do not have a copy
of the speech or a transcript or tape recording of your remarks, please give the
name and address of the group before whom the speech was given, the date of the
speech, and a summary of its subject matter. If you did not speak from a prepared
text, please furnish a copy of any outline or notes from which you spoke.
1980-89. 1 would participate as a presenter at occasional seminars on oil and gas law and on
other subjects, but I have no record of any of those presentations. My specific recollection is
solely of a seminar at which four members of my firm made presentations. We were presented a
plaque, which allowed me to obtain this information from the lawyer who retained it:
Mississippi Oil and Gas Law: What The Landman Needs To Know, March 2, 1989, sponsored
by Baton Rouge Association of Petroleum Landmen. Any materials from the session are lost.
Different dates. I have occasionally been called upon to give a talk on my book, Presidential
Also-Rans & Running Mates, 1 788-1996. I have spoken to church groups, civic clubs, and
others. I have included a copy of typed remarks from one occasion, and a print-out of power-
point slides that I used in 2002.
April 18, 1982, St. Luke’s Methodist Church, church fellowship hall, Jackson. I moderated a
panel discussion on abortion, between a physician and a chaplain. I do not now have and
probably did not present prepared remarks.
1982, Mississippi State Bar Annual Convention, Broadwater Beach Hotel, Biloxi. I spoke on
Oil, Gas, and Coal Leasing on Sixteenth Section [school] Lands.” I do not have a copy of my
remarks.
1988 George Bush campaign. I gave a few campaign addresses in support of Bush, but I do not
have any record of my remarks nor do I remember many details, other than one address was on
the back of a trailer at the campus of Mississippi College in Clinton.
November 11, 1988, Mississippi Youth Legislature banquest speaker, Holiday Inn, Jackson. I
spoke on the two-party system in Mississippi, with the chairman or director of the state
Democratic Party having equal time. I do not have any record of my remarks.
November 13, 1989, U.S. Attorneys conference, Northern District of Mississippi, in Oxford,
University Student Union. I spoke on U.S. attorneys offices from the perspective of “Main
Justice” and specifically the Civil Division. I do not have a copy of my remarks.
August 19, 1990, Southaven, Miss. Police Station dedication. I was the principal speaker at the
dedication, and spoke about the importance of law enforcement. My outline is attached.
September 5, 1990, Partners Against Drug Abuse, National Seminar and Exhibition, Arlington,
Va. I was on a four-person panel that discussed drug testing of employees. I do not have a copy
of my remarks.
8
450
September 10, 1990, Executive Office, U.S. Attorneys, Financial Litigation Conference, San
Francisco, I gave an overview of DOJ’s tools and efforts. I do not have a copy of my remarks.
February 27, 1991, Interagency (OTS, RTC, FDIC) Bank Fraud Conference, Atlanta, Georgia. I
believe I spoke as a substitute for the Assistant Attorney General on the issue of Civil Money
Penalty Actions. I do not have a copy of my remarks.
May 22, 1991, U.S. Attorneys’ Offices, Iowa, Clients’ Conference, Des Moines. I spoke on
resolving conflicts among agencies affected by litigation. I do not have my outline.
August 30, 1991, Executive Office of U.S. Attorneys Financial Institution Fraud Training
Seminar, Boston. I spoke on civil penalties. A copy of my outline is attached.
September 12, 1991, Federal Attorneys Conference, KeeslerAir Force Base, Biloxi, Miss. I
spoke on ethics in federal litigation, I have attached a copy of my hand-written remarks..
October 15, 1991, Practicing Law Institute Civil and Criminal Liability of Officers, Directors,
and Professionals., Mayflower Hotel, Washington. I have attached a copy of my outline.
November 1991, U.S. Attorneys Conference, perhaps conducted by the Executive Office of U.S.
Attorneys, held in Savannah, Georgia. I spoke on then-recent amendments to the Rules of Civil
Procedure. I do not have a copy of my remarks.
June 5, 1992, Mississippi Association of Legal Assistants, spring seminar, Ramada Renaissance,
Jackson. I spoke on the activities of the U.S. Department of Justice. A copy of my notes is
attached.
1994. I have a copy of only one address from my first election to the Court of Appeals. It was
given in Natchez on an unknown date, discussing the campaign and the needs of the court
system. Copy of my remarks attached. I have included press stories of other campaign events.
On most occasions I spoke without notes and have no record of my remarks.
January 20, 1995, Jackson Young Lawyers’ (JYL) monthly luncheon. I talked about the
previous year’s judicial campaign. Copy of outline attached.
January 26, 1995, Mississippi Association of Legal Assistants monthly meeting, Capital City
Petroleum Club. The same remarks as for the JYL luncheon on Jan. 20 were used.
March 10, 1995, Mississippi Trial Lawyers’ Association. I was on a panel with other Court of
Appeals judges to discuss our court. A handwritten outline is enclosed.
April 10, 1995, Jones County bar luncheon. I spoke about the Court. A copy of my hand-written
outline is attached.
August 3, 1995, Tylertown Rotary luncheon. I spoke about the Court, A copy of my outline is
attached.
9
451
October 10, 1995, Jackson Legal Secretaries Association Court Observance Day, Primos
Northgate Restaurant, Jackson. I spoke about the Court. A copy of my outline is attached.
December 1995. Sponsored by the Kriebte Institute, I went to St. Petersburg, Volgograd, and
Maloyaroslavets (south of Moscow) to give talks about democracy to candidates and citizens a
few weeks before the 1996 Duma elections. I cannot find copies of my remarks. I spoke through
a translator at each location.
January 18, 1996, Mississippi Oil and Gas Lawyers’ Association monthly dinner, Capital Club,
Jackson. I spoke on the operation of the Court of Appeals. A copy of my outline is attached.
January 22, 1996, Charles Clark Chapter, American Inns of Court, bimonthly program. I
discussed the different options for structuring an intermediate appeals court, the option the Miss,
legislature selected, and some pros and cons of the choices. Copy of my notes attached.
1996-present. As a member of the JAG Corps, I have frequently given briefings to soldiers on
military law, including a set of briefings required annually on military discipline, ethics, and
employment rights of Reservists and National Guardsmen. The briefings were largely based on
powerpoint slides and other materials provided by others. I have not attached any remarks since
the materials are not really of my creation.
March 20, 1996, Lee County Bar luncheon, Morrison’s Cafeteria meeting room, Tupelo. I
discussed my experiences in Russia. A copy of my remarks is attached.
March 29, 1996, Rankin County Rotaiy luncheon, Brandon restaurant. I spoke on my
experiences visiting Russia in late 1 995. A copy of an outline of my remarks is attached.
August 2, 1996, Jones County Bar/Legal Secretaries Asscociation conference. My topic was
“Statutes and Rules Relating to the Court of Appeals.” A copy of my hand-out is attached.
February 1 1, 1997, Christian Legal Society luncheon, Jackson, Mississippi College School of
Law. I spoke on the faith of different American public figures. A copy of my talk is attached.
April 18, 1997, Hinds County Bar court practice seminar. I was on a panel that discussed the
work of the court. Our joint hand-out is attached.
May 16, 1997, Mississippi Association of Legal Assistants spring seminar. I spoke on the work
of the Court. My hand-out is attached.
October 23, 1997, Fall Conference for Court Administrators and Legal Research Assistants,
Harvey Hotel, Jackson, Miss. I spoke about pro se litigants and on the work of the Court of
Appeals. A copy of my outline is attached.
December 17, 1997, Supreme Court reception room, on retirement of Chief Justice Dan Lee. A
copy of the remarks that I have on behalf of the Court of Appeals is attached.
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January 6, 1998, Pascagoula, Miss. Kiwanis Club luncheon. I spoke on the need for truth and
other virtues in judges. Copy of notes of talk attached.
April 13, 1998, Jones County Bar Association luncheon. I discussed the Court of Appeals. A
copy of my notes is attached.
May 1, 1998, Hinds County Bar Association Seminar on Court Practice, University Center,
Jackson. I was on a three-judge panel to discuss the Court of Appeals. Copies of the outline for
my remarks included.
February 23, 1999, North Jackson Rotary Club luncehon, Primos Northgate Restaurant. Lessons
of Life. Some rather elliptical, ambiguous notes are attached.
January 21, 2000, Jackson, Miss., Jackson Young Lawyer’s monthly luncheon. I had been a
guest on Brian Lamb’s C-SPAN program on Christmas Eve morning, 1999. I spoke about my
experience. Copy of notes attached.
February 18, 2000, Mississippi College Law School AnnualLabor & Employment Law seminar.
Sports Hall of Fame. I was on a panel with two other judges. I do not remember the questions.
A copy of the program is attached.
May 10, 2000, Fifth Circuit Judicial Conference, Hyatt Regency Riverwalk, San Antonio, Tex I
was on a three-person panel whose topic was “Evolving Federalism - What’s Ahead.” Then-
Texas Attorney General John Comyn and Professor Cheney Joseph (LSU) were the other
panelists. Copy of prepared remarks attached.
January 16, 2002, Clinton (Miss.) Rotary Club luncheon. Talked about judicial ethics. My
outline, which is contusing now even to me, is attached.
October 17, 2002, Library Building, New Albany, Miss. I spoke to a monthly lunch meeting
about my book on presidential also-rans. A copy of my power-point slides is attached.
June 13, 2002, American Legion Boy’s State annual convention, Delta State University
auditorium. Spoke on virtue and achievement in life. Copy of notes attached.
June 6, 2003, Mississippi Bar, Young Lawyers Division, Videoconference, at Eagle Ridge
Conference Center, Raymond, Miss. I spoke on “Recent Mississippi Appellate Decisions and
Revisions to Court Rules.” Copy of hand-out attached.
2003. At some point I gave a talk to a Sunday morning class at my church on C.S. Lewis, but I
do have copies of any notes nor do I recall exactly when it was.
February 24, 2004, annual dinner of Jackson Legal Professionals Association, meeting room of
Steam Room Grille, Jackson. I spoke on the court, judicial elections, and judges generally. A
copy of my outline is attached.
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June 2, 2004, CLE seminar at Mississippi College School of Law. I spoke on the military ethics
rules. Copy of hand-out attached.
August 2, 2004, swearing-in of new law clerks, Mississippi Court of Appeals courtroom. On
behalf of the assembled judges, I spoke to the new clerks about the importance and honor of their
new duties. Copy of prepared remarks attached.
March 2006, St. Richard Catholic Church, Jackson, “Timely Topics” adult Sunday morning
class. I presented a talk on my experiences in Iraq, using powerpoint slides that consisted solely
of photographs from Iraq. I have not printed those for this submission to the Committee, as other
than an occasional caption to a photo, only pictures would be seen.
May 9, 2006, Hinds County Bar Annual Dinner Honoring the Judiciary, Old Capitol Inn,
Jackson, Miss. Talked on experiences in Iraq. Copy of speech attached.
August 2006. Swearing-in of new law clerks, Mississippi Court of Appeals courtroom. My
remarks are attached.
e. Please list all interviews you have given to newspapers, magazines or other
publications, or radio or television stations, providing the dates of these
interviews and four (4) copies of the clips or transcripts of these interviews where
they are available to you.
Clippings and other materials included. These are the general categories:
(1) One transcript is from my work at the Department of Justice. I spoke at a press briefing
about the deposition of former President Reagan in the prosecution of Admiral Poindexter.
(2) Political campaigns of George H.W. Bush. I served as state campaign coordinator in 1980
and state steering committee chairman in 1988.
(3) Candidate for judicial office, 1994 and 1996.
(4) Interviews about my book Presidential Also-Rans & Running Mates.
(5) A few miscellaneous stories.
(6) I participated in three television interviews. One interview was by Brian Lamb on C-Span
on December 24, 1999; the subject was the Also-Ran book and a poll I had conducted of
historians. The second was with a local television news anchor about the 1988 Bush campaign.
The final is from the summer of 2004 when I was interviewed about my departure on active
military duty.
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14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each such
court.
Judge, Mississippi Court of Appeals (1995-2006, with leave of absence Aug. 2004-Jan.
2006). Elected 1994 for initial 4-year term; re-elected 1998 for 8-year term. Did not run
for re-election in 2006. This is a general jurisdiction intermediate appellate court.
15. Citations : If you are or have been a judge, please pro vide:
a. citations for all opinions you have written (including concurrences and dissents).
Lists are attached to the questionnaire. The list of published opinions was
generated through a Westlaw search and is in reverse chronological order. The
separately-compiled list that refers to unpublished opinions is in standard
chronological order.
b. a list of cases in which certiorari has been requested or granted.
The lists that respond to the previous question contain references to grants of
certiorari.
c. a short summary of and citations for all appellate opinions or orders where your
decisions were reversed or where your judgment was affirmed with significant
criticism of your substantive or procedural rulings.
1. Johnson v. State , 924 So. 2d 527 (Miss. Ct. App. 2004), rev’d 925 So. 2d 86 (Miss. 2006).
The Supreme Court sought in its decision to resolve a multi-year ambiguity regarding whether
prior felons could upon a subsequent conviction receive a suspended sentence despite a statute
that prohibited “probation” in sentencing prior felons. The Court of Appeals for several years
had interpreted two statutes as being consistent and as prohibiting probation or its equivalent
from being available. The Supreme Court in Johnson determined that the later of the two
statutes was trying to restore what the previous statute had prohibited but by using a different
name. The Court overruled one of its precedents that it stated was the origin of the confusion.
2. Crider v. Crider, 905 So. 2d 706 (Miss. Ct. App. 2004), rev’d 904 So. 2d 142 (Miss. 2005).
This was a divorce action in which joint custody was awarded the parents without a joint request.
For years, this Court of Appeals had interpreted the relevant statute as requiring a joint request.
Finally the Supreme Court ruled, holding in what it called “an issue of first impression” that the
statute should not be interpreted to require a joint request.
3. Barber Seafood, Inc. v. Smith , 906 So.2d 1 (Miss. Ct. App. 2004), rev’d 91 1 So. 2d 454 (Miss.
2005), In this workers compensation case, I interpreted the commission’s decision as concluding
that the worker had not reached maximum medical improvement and that his partial disability
continued. The Supreme Court disagreed with my interpretation of this part of the commission
order and concluded that permanent disability benefits were appropriate.
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4. Rankin v. Clements Cadillac, Inc. 905 So.2d 710 (Miss. Ct. App. 2004), rev’d 903 So. 2d 749
(Miss. 2005). This involved the interpretation of a settlement agreement in earlier litigation. I
found that the settlement covered the claims involved in this subsequent litigation and also
discussed another issue at some length. The Supreme Court found that I had “concentrated on
the question of whether Rankin was bound by the settlement agreement, rather than the
dispositive question of whether the settlement agreement reached the claims in Rankin’s separate
litigation against Clements.” Maybe my concentration waned, but I addressed what the Supreme
Court found to be controlling and reached a different conclusion than did the higher court.
5. Sanderson v. State, 881 So.2d 878 (Miss. Ct. App.), rev’d 883 So.2d 558 (Miss. 2004). This
criminal case had a two-count indictment. I wrote to affirm on the conviction on the first count
of aggravated assault but found that the second count on conspiracy to be fatally defective
because it did not name any victim against whom the conspiracy was to operate. The Supreme
Court disagreed with my interpretation of precedents and said that the two counts of the
indictment did not need to be self-contained, and the victim’s name from the first count could be
implied as the victim of the conspiracy in the second count.
6. Watson v. State, 841 So.2d 218 (Miss.Ct. App. 2003); Harris v. State , 826 So,2d 765 (Miss.
Ct. App. 2002); Badger v. State, 826 So.2d 111 (Miss. Ct. App. 2002). In these cases, I applied
the Court of Appeals position that Miss. Rule of Appellate Procedure 4 limited the right of a trial
judge to grant an out-of-time appeal to 180 days. After 180 days, a criminal defendant was
limited to bringing post-conviction relief. The Supreme Court held in 2004 that despite the
reference to 1 80 days in the rule, the trial judge had discretion that was not limited in time. I
wrote on the remand of that decision and cited our precedents - including these three that I wrote
- that should be considered overruled by the Supreme Court’s holding. DeLoach v. State, 890
So.2d 934 (Miss. Ct. App. 2004).
1. Jackson v. State Farm Mut. Auto. Ins. Co., 852 So.2d 641 (Miss. Ct. App. 2003), rev’d 880
So. 2d 336 (Miss. 2004). This summary judgment appeal concerned notice that must be given an
insurer regarding a claim. I found a factual issue regarding prejudice to the insurer, and also
interpreted a Supreme Court precedent about the date for accrual of a cause of action against an
insurer for underinsured motorist benefits. I found accrual was when plaintiffs knew or
reasonably should have known that the damages suffered exceeded the limits of insurance
available from alleged tortfeasor. The Supreme Court found no factual issues on prejudice and
disagreed as to when the cause of action accrued.
8. Morrison v. Mississippi Dept, of Human Services, 852 So.2d 578 (Miss.Ct. App. 2002), rev’d
863 So. 2d 948 (Miss. 2004). This was a collateral attack on a six-year old contempt and child
support modification order. I affirmed the trial court’s judgment, but the Supreme Court found
that proper notice of the hearing had not been given the father.
9. Estate of Law v. Law, 852 So.2d 33 (Miss.Ct. App. 2002), rev’d 869 So. 2d 1027 (Miss.
2004). For the Court, I wrote to reverse a finding that a deed was procured by fraud. I did not
find the substantial evidence needed for such a ruling though the facts of the case were
suspicious. The Supreme Court reversed, saying that there was sufficient evidence.
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10. Estate of Temple, 1998-CA-01190 (Miss. Ct. App. Mar. 28, 2000), rev’d 780 So. 2d 639
(Miss. 2001). Issue was the ownership of a certificate of deposit after the death of the person
who had obtained it. I found that a change in ownership during the lifetime of the initial owner,
if made consistent with the bank’s rules, could alter the ownership even if the certificate of
deposit itself had not been reissued. The original certificate was lost, but a copy was provided.
The Supreme Court found that the name on the face of the certificate controlled.
1 1. Harrison v. State, No. 1998-KA-01278 (Miss. Ct. App. Feb. 8, 2000), afiPd after rejecting
my reasoning, 800 So. 2d 1 1 84 (Miss. 2001). I had found that a new statute increasing the
penalty for speeding in a work zone when workers were present did not abolish the right of the
Department of Transportation to mandate slower speeds even when workers were not present;
the Supreme Court disagreed but affirmed on alternative grounds.
12. Grant v. Martin, 744 So.2d 817 (Miss. Ct. App. 1999), rev’d 757 So.2d 264 (Miss. 2000). I
wrote to reverse and render on an issue of custody of a minor child. The Supreme Court found
that a remand would have been appropriate under the standard that I was applying; that was
correct. In addition, though, the Supreme Court adopted a new standard that would apply to
decisions in which a parent had previously relinquished custody of a minor child and was now
trying to regain custody.
13. Carter v. State , No. 98-CP-00303 (Miss. Ct. App. Apr. 20, 1999), rev’d, 754 So. 2d 1207
(Miss. 2000). After our opinion, the Supreme Court reversed a precedent on which we relied
regarding whether to consider the length of probation when determining the maximum sentence
to be given a defendant after conviction.
14. Bennett v. State, 738 So.2d 300 (Miss. Ct. App. 1999). The Supreme Court cited this opinion
in a list in which it overruled several opinions of their own as well as of the Court of Appeals,
regarding the nature of the convictions that were usable as impeachment under Rule of Evidence
609. White v. State , 785 So.2d 1059 (Miss. 2001).
15. Soileau v. Mississippi Coast Coliseum Com'n, 730 So.2d 101 (Miss. Ct. App. 1998). At the
time Of this opinion, the Supreme Court’s latest holdings were that there must be strict
compliance with the statute that required notice prior to a tort suit against a governmental
agency. Later, the Court changed the standard to one of substantial compliance and listed this
opinion as one of those that was overruled. Williams v. Clay County, 861 So.2d 953 (Miss.
2003).
16. McRee v. State, 723 So.2d 1247 (Table) (Miss. Ct. App. May 5,1998), rev’d, McRee v. State,
732 So. 2d 246 (Miss. 1999). The Supreme Court found that there was insufficient
circumstantial evidence to link the accused to the burglary.
17. Rich v. Mississippi State Department Health, No. 95-CC-00908 (Miss. Ct. App. Nov. 18,
1997), rev'd 719 So. 2d 173 (Miss. 1998). The nurse licensing board barred from further
employment a nurse who had negligently let a patient fall. I found that the statutory word
"neglect” as a basis for barring employment could not be mere negligence but required a
consciously indifferent act. On rehearing, the Department presented evidence that a relevant
federal agency interpreted neglect to be simple negligence. I found that inconclusive on the issue
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of what the Miss, legislature did when it adopted the statute prior to the federal events. In
interpreting the state statute, the Supreme Court gave what it called "deference" to the federal
agency view of "neglect" and reversed.
18. Turnbough v. Ladner, 1998 WL 881776 (Miss. Ct. App. Dec. 18, 1998), rev’d 754 So. 2d
467 (Miss. 1999). In this personal injury action, I found that a waiver signed by a deep sea diver
prior to being taken on a dive was binding; the Supreme Court (5-4) found that it did not contain
sufficiently clear and express language to be enforceable.
19. Nicholson v. State, 691 So.2d 1046 (Table) (Miss.Ct.App. Jan 28, 1997) (NO. 93-KA-
01378-COA), rev’d, 704 So. 2d 81 (Miss. 1997). I found that accused, when he denied ever
abusing a child, had opened door to cross-examination about sexual acts with child other than
victim of the indicted crime. Supreme Court reversed.
20. Hickson v. State. 691 So.2d 1035 (Table), Miss.App., Aug 20, 1996 (NO. 92-KA-00976-
COA), rev’d Hickson v. State . 707 So.2d 536 (Miss. 1997). I found that pre-trial publicity had
not been so severe as to require a change of venue; the Supreme Court disagreed and reversed for
a new trial.
21. Jones v. Estate of Richardson . 691 So.2d 1034 (Table), Miss.App., Aug 06, 1996 (NO. 94-
CA-00163-COA); rev’d. Matter of Estate of Richardson . 695 So.2d 587 (Miss. 1997). I had
found that the language of the statute for determining heirship denied standing to an executor
when none of the deceased’s property passed by intestacy; instead, an heir would need to bring
the action. The Supreme Court disagreed.
d. a list of and copies of any of your unpublished opinions that were reversed on
appeal or where your judgment was affirmed with significant criticism of your
substantive or procedural rulings.
The list and citations to these opinions are in the list in response to question 15.c.
above; copies are also provided on a disk.
e. a description of the number and percentage of your decisions in which you issued
an unpublished opinion and the manner in which those unpublished opinions are
filed and/or stored; and
From 1995 until mid-1997, none of the Court of Appeals opinions were
published. From the latter date until November 1998, very few opinions were
published. The unpublished opinions are kept by the court. I have provided a
digital copy of all my unpublished opinions. For completeness, and since 1
maintained them in annual electronic files that I printed out and bound in book
form for my clerks as a memento of their service and for myself, I have provided
a digital copy of all my opinions from 1995-2004 and for 2006.
f. citations to all cases in which you were a panel member in which you did not
issue an opinion.
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The Mississippi Court of Appeals decides all cases en banc. The initial
consideration of a case is by a three-judge panel, but the remaining seven judges
on the court eventually receive the panel opinion(s) and vote on them, as well as
write separately if desired. The court decided about 600 cases per year during my
service from 1995-2006 (with a leave of absence from August 2004 until January
2006). If the desire is to have a citation to all of the court’s opinions on which I
voted but did not write, that is a cite to perhaps 7,000 cases resolved by the court
during my service, except for those in which I did not participate. I identified
about 80 cases in which I did not participate. The published opinions of course
can be accessed on the standard internet search services. The unpublished
opinions on which I voted but did not write are kept at the court. I have provided
digital copies of all unpublished opinions which I wrote.
16. Recusal: If you are or have been a judge, please provide a list of any cases, motions or
matters that have come before you in which a litigant or party has requested that you
recuse yourself due to an asserted conflict of interest, or for aiiy other apparent reason, or
in which you recused yourself sua sponte. (If your court employs an "automatic 1 ' recusal
system by which you may be recused without your knowledge, please include a general
description of that system.) Please identify each such case, and for each provide the
following information:
a. whether your recusal was requested by a motion or other suggestion by a litigant
or a party to the proceeding or by any other person or interested party; or if you
recused yourself sua sponte;
In an appendix to this response, I have included a list of all formal recusals and
also all cases in which I did not participate. There are about 80 cases total. Of
those, I had a record or could reconstruct only three in which there was a motion
for recusal. One of those was after I left the court, another I denied, and the third
was granted. The decision not to participate in the remainder of the cases was on
my own initiative.
b. a brief description of the asserted conflict of interest or other ground for recusal;
Each relevant case in the appendix indicates the reasons for the decision.
c. the procedure you followed in determining whether or not to recuse yourself;
Shortly after a case was assigned by the state supreme court to the court of
appeals, it would be included on a list circulated to all judges of the latest
assignments, including the parties and the lawyers. I would examine those for
possible conflicts. General familiarity with a lawyer or even friendship was not
sufficient, though a recent and significant association in some organization or
otherwise would cause recusal. I recused when a close friend or neighbor was a
party, or in one case, when a zoning issue regarding property near my home was
raised.
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d. your reason for recusing or declining to recuse yourself, including any action
taken to remove the real, apparent or asserted conflict of interest or to cure any .
other ground for recusal.
In the appendix listing, there is an explanation of my decision for each of the
cases in which I decided not to participate or in which I ruled on an actual recusal
motion.
a. List chronologically any public offices you have held, other than judicial offices,
including the terms of service and whether such positions were elected or
appointed. If appointed, please include the name of the individual who appointed
you. Also, state chronologically any unsuccessful candidacies you have had for
elective office or unsuccessful nominations for appointed office.
Appointed by governor to Mississippi Constitution Study Commission, 1985-86.
Defeated for Mississippi Supreme Court 1996
Defeated in Mississippi primary as delegate from Fourth Congressional District to
1980 Republican National Convention on George Bush slate
b. List all memberships and offices held in and services rendered, whether
compensated or not, to any political party or election committee. If you have ever
held a position or played a role in a political campaign, please identify the
particulars of the campaign, including the candidate, dates of the campaign, your
title and responsibilities.
1970: Volunteer, George Bush for U.S. Senate, 1970.
1977: Volunteer, Doug Shanks for Jackson (Miss.) Mayor
1978: Volunteer, Thad Cochran for U.S. Senate; John Hampton Stennis for
Congress
1979: Volunteer, Gil Carmichael for Governor, Charles Pickering for Attorney
General
1980 Mississippi Campaign Manager, George Bush presidential campaign.
1982: Member, state steering committee, Haley Barbour for U.S. Senate
1983: Volunteer, Leon Bramlett for Governor campaign
1984: State campaign committee member, Reagan-Bush
1984-88 Member and officer, Capital Area Republican Club
1987: Hinds County chairman and state steering committee member, Jack Reed
for Governor
1988: Chairman, Mississippi Steering Committee, Bush Presidential Campaign.
1988-89: Mississippi Republican Executive Committee; Hinds County
Republican Executive Committee
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18- Legal Career: Please answer each part separately.
a. Describe chronologically your law practice and legal experience after graduation
from law school including:
i. whether you served as clerk to a judge, and if so, the name of the judge,
the court and the dates of the period you were a clerk;
I served as a Briefing Attorney (law clerk) for Presiding Judge John F.
Onion, Jr., 1975-76, Texas Court of Criminal Appeals, in Austin.
I also served as a Law clerk for Judge Charles Clark, U.S. Court of
Appeals, Fifth Circuit, 1976-77, in Jackson, Miss.
ii. whether you practiced alone, and if so, the addresses and dates;
I have never practiced alone.
iii. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been affiliated, and the nature
of your affiliation with each.
Associate 1977-83, partner 1983-89, at Brunini, Grantham, Grower, &
Hewes, in Jackson, Miss. P.O. Box 119, Jackson, MS 39205
Deputy Assistant Attorney General, Civil Division, U. S. Department of
Justice, 1989-1993; 950 Pennsylvania Avenue, N.W., Washington, D.C.;
supervised Federal Programs Branch and Office of Consumer Litigation.
Judge, Mississippi Court of Appeals, 1995-Present; 656 North State Street,
Jackson, MS.
b. Describe:
i. the general character of your law practice and indicate by date when its
character has changed over the years.
1977-1989, primarily worked for oil and gas clients. Performed title work
for explorations, defended some suits against these clients, negotiated oil
and gas leases with public bodies, and prepared contracts. Also worked
for school districts on general contract issues, such as disputes with
builders. Handled two divorces, helped form a few corporations, and did a
small amount of lobbying on school issues.
1989-93. Work at Department of Justice was in Civil Division.
Supervised Federal Programs Branch (125 lawyers; defended suits brought
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against the U.S. and its agencies) and Office of Consumer Litigation (25
lawyers; civil and criminal enforcement of federal consumer laws),
ii. your typical clients and the areas, if any, in which you have specialized.
Oil and gas companies were almost all multi-state corporations such as
Shell Oil, Conoco, and Inexco. I worked for such companies as United
Gas Pipeline and Transco Pipeline on their natural gas contract issues.
Jackson School District was my principal client for school work.
c. Describe the percentage of your practice that has been in litigation and whether
you appeared in court frequently, occasionally, or not at all. If the frequency of
your appearances in court varied, describe such variance, providing dates.
I appeared occasionally in court. Motion practice both in private law firm and at
the Department of Justice. At the firm, I handled three appeals to the state
supreme court and one to the Fifth Circuit. A small number, but won them all.
Throughout 1977-1989, 1 was involved in some litigation at the firm though it was
about twenty percent of my work. At the Justice Department, the vast majority of
my work was involved with litigation, with occasional court appearances.
i. Indicate the percentage of your practice in:
1. federal courts: 50%
2. state courts of record: 50%;
3. other courts: none.
ii. Indicate the percentage of your practice in:
1 . civil proceedings: 70%;
2. criminal proceedings: 30%.
d. State the number of cases in courts of record you tried to verdict or judgment
(rather than settled), indicating whether you were sole counsel, chief counsel, or
associate counsel.
From 1977-1989, 1 estimate that I was involved in six cases that were tried to
judgment. I was chief counsel in two, sole counsel in one, and associate in three.
i. What percentage of these trials were:
1 . jury: zero percent;
2. non-jury: one hundred percent.
e. Describe your practice, if any, before the Supreme Court of the United States.
Please supply four (4) copies of any briefs, amicus or otherwise, and, if
applicable, any oral argument transcripts before the Supreme Court in connection
with your practice.
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No practice before Supreme Court.
19. Litigation : Describe the ten (10) most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of each case. Identify the party
or parties whom you represented; describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the case
was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
1. Queen Esther Wooten v. Consolidated Coal Co., Cause # 7533, Chancery Court,
Kemper County, Miss., decree May 9, 1979. Lessor sued through next friend to cancel
lease saying that she was incompetent to execute it. Bench trial resulted in judgment for
plaintiff. I was lead counsel, presented evidence and argument, with a senior partner in
attendance. No appeal taken.
Trial judge: John Clark Love, Kemper County Chancery Court (662-289-3862).
Opposing counsel: Laurel Weir and James R. Allen, Philadelphia, Miss., both deceased.
Co-Counsel: Newt Harrison, Brunini Grantham Grower & Hewes (now retired), 601-948-
3101.
2. Damson Oil Corp. v. Southeastern Oil Co., 370 So.2d 225 (Miss. 1979) (associate
counsel). My client was Damson Oil. The parties had competing claims before the state
Oil and Gas Board for drilling permits. Our client’s permit was sustained on appeal.
Trial court: Wayne County Circuit Judge Lester Williamson, now deceased; trial in 1977.
Opposing counsel, Luther Thompson, Armstrong Allen firm, 2525 Lakewood Drive,-
Suite 200, Jackson, MS 39216. 601-713-1192
Co-Counsel: John Grower, Brunini Grantham Grower & Hewes (retired), 601-948-3101
3. Berry v. United Gas Pipe Line Co., 370 So.2d 235 (Miss. 1979) (associate
counsel; made Supreme Court argument). My client was UGPL. The company had laid
a pipeline without getting a valid easement. In the condemnation action, the landowner
argued that the pipeline was now his property since we had trespassed, and we must buy
it from him as well as pay for the easement. We prevailed on the trespass issue and only
had to pay the fair market value of the easement.
Trial court: Jefferson Davis County Circuit Judge R. I. Prichard, tried in 1977-78.
Opposing counsel, Michael Eubanks, now a state Circuit Judge, P.O. Box 488, Purvis,
MS 39475. 601-794-6035
Co-Counsel: Newt Harrison, Brunini Grantham Grower & Hewes, 601-948-3101
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4. Continental Oil Co. v. Blair, 397 So.2d 538 (Miss. 1981) (associate counsel). The
suit concerned whether our client, Continental, when developing an oil field had to
protect small tract royalty owners or only protect the entire lease from drainage of oil.
Our client prevailed on the need simply to protect the original leasehold.
Trial Court: Wayne County Chancery Judge Howard Pigford, now deceased.
Opposing Counsel, Walker Watters, now at Brunini Grantham Grower & Hewes, P.O.
Box 1 19, Jackson, MS 39205, 601-948-3101.
Co-counsel: John Grower, Brunini Grantham Grower & Hewes (now retired).
5. Phyfer v. San Gabriel Development Corp., 884 F.2d 235 (5th Cir. 1989). (sole
counsel). I represented Jim Ling, owner of San Gabriel. Our oil and gas lessor filed suit
claiming that the lease had terminated due to a breach. Both the district and the circuit
court held that the lessor waived his claim of forfeiture
Trial judge: William Barbour, U.S.District Court, S. D. Miss. Now on senior status.
Fifth Circuit panel: Writing Judge Rubin, panel of Wisdom and King
Original opposing counsel, Mike Earwood, Earwood & Childers, 403 Towne Center
Blvd, Suite D-2, Ridgeland, MS 39157. 601-898-8080
Later opposing counsel (conducted Fifth Circuit argument, though Earwood’s name
appears on report of case): Glen W. Hall, 745 Carlisle Street, Jackson, MS 39202, 601-
948-7300
Co-counsel: John Grower, Brunini Grantham Grower & Hewes (now retired), 601-948-
3101.
My time at DOJ involved some work on briefs and some arguments at motion hearings. I
was not the primary attorney for any entire case, but only worked on some part that
seemed to benefit from the involvement of a policy-level person. Cases in which I
presented the argument included these:
6. Doe v. Sullivan, 756 F. Supp. 1 2 (D.D.C.), affirmed 938 F.2d 1 370 (D.C. Cir.
1991). The plaintiff sought an injunction to prevent DOD from requiring troops to be
administered certain drugs as they were deploying to the Persian Gulf as part of Desert
Shield/Desert Storm. I presented the argument at the District Court, but did not
participate in the appeal. Circuit Judge Clarence Thomas dissented on appeal, finding the
issues moot.
Trial judge: Stanley S. Harris, U.S. District Court, D.D.C.
Opposing counsel. Alan B. Morrison, Michael Tankersley, Public Citizen Litigation
Group, Washington, D.C.
Co-counsel: David Anderson, Mona Alderson, Patricia Russotto, all with Federal
Programs Branch, Civil Division, U.S. Department of Justice
7. United States v. Poindexter, 95 1 F.2d 369 (D.C. Cir 1991) (reversal of
conviction). I was the lead DOJ counsel at February 16-17, 1990 deposition of former
President Reagan in Los Angeles courtroom, who gave a videotaped deposition in the
independent counsel prosecution of President Reagan’s former National Security
Adviser, Admiral (ret.) John Poindexter. The deposition was presided over by District
Judge Harold Greene, U.S. District Court, D.D.C.
22
464
Other counsel: Theodore B. Olson, counsel for President Reagan. Gibson Dunn &
Crutcher,1050 Connecticut Avenue N.W. Washington, D.C. 20036 T: (202) 955-8668
Associate Independent Counsel Dan K. Webb, Winston & Strawn LLP. 35 West Wacker
Drive. Chicago, Illinois 60601.312-558-5600.
Co-Counsel: David Anderson, U.S. Department of Justice.
8. Long Island Savings Bank, FSB v. Federal Savings & Loan Ins. Corp., No. CV-
89-2699 (E.D. NY 1989). I presented the case in December 1989 on Government’s
motion to dismiss and for summary judgment under the new Financial Institution Reform
and Recovery Enforcement Act. The U.S. argued that Long Island was undercapitalized
because of the proper elimination of supervisory good will as a permissible asset. This
was one of the first cases under FIRREA and could have been the vehicle for determining
the constitutionality of the tightening of accounting regulations on S&L’s against attacks
that it constituted a takings and breached the contract between the S&L and the FSLIC.
The trial judge never entered a decision. Later the Savings Bank brought suit in the
Court of Federal Claims regarding damages arising from the change in accounting rules.
Long Island Savings Bankv. United States, 60 Fed. Cl. 80 (2004).
Trial judge: Raymond Dearie, U.S. District Court, E.D. N.Y..
Opposing counsel, Lloyd Cutler, Washington, D.C., now deceased. Cutler’s co-counsel:
Michael Chepiga, Simpson Thacher & Bartlett, 425 Lexington Avenue, NY, NY10017-
3954 (202)-455-2598
Co-Counsel: Brook Hedge (now a D.C. Superior Court judge); Ted Hirt (still with Civil
Division), Robin Ball, Jerome Epstein, and Paul Herrup.
9. American Federation of Government Employees v. Cheney CA No. CV-92-PT-
2453-E (N.D. Ala. Dec. 21, 1992). This was a challenge to the Defense Department’s
decision to realign the activities at Anniston Army Depot and to move tactical missile
maintenance to Letterkenny Army Depot, Pennsylvania. 1 presented the government’s
case at an evidentiary hearing and prevailed.
Trial judge: Robert Propst, U.S. District Judge, N.D. Ala.
Opposing Counsel: Tom Stewart, Gorham & Waldrep, Suite 700, 2101 6th Avenue
North, Birmingham, Alabama 35203. Tel: 205-254-3216
Co-counsel: Federal Programs Branch: David Anderson (retired), Jennifer Rivera.
10. Mackie v. Bush, 809 F. Supp. 144 (D.D.C.), order vacated as moot 10 F.3d 13
(D.C. Cir 1993). This suit was brought by a majority of the Board of Governors of U.S.
Postal Service to enjoin the President from removing some of them from office due to a
dispute regarding a postal rate increase. The T.R.O. hearing was scheduled for the day
after the suit was filed. I prepared the brief overnight and presented the government’s
position on the T.R.O. Additional proceedings occurred after I left DOJ.
Trial judge: U.S. District Judge Oberdorfer, D. D.C., (202) 354-3270
Opposing counsel: Kenneth S. Geller, Mayer, Brown & Platt, 1909 K Street, N.W.,
Washington, DC 20006-1101 Tel: 202-263-3225
Co-counsel: Douglas Letter, Civil Division, U.S. Department of Justice
23 '
465
20. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that did not
involve litigation. Describe fully the nature of your participation in these activities.
Please list any client(s) or organization(s) for whom you performed lobbying activities
and describe the lobbying activities you performed on behalf of such client(s) or
organizations(s). (Note: As to any facts requested in this question, please omit any
information protected by the attorney-client privilege.)
My duties at DOJ involved supervision of the Federal Programs and Consumer Litigation
branches of the Civil Division. Policy-level decisions on suits in those branches were
largely my responsibility, though higher-level officials would be involved in the most
significant cases. Litigation regarding the 1990 census, many suits involving financial
institution fraud, litigation arising from the President’s use of troops in the Persian Gulf,
and settlement of a class action involving Social Security disability payments for
children, and an environmental group’s attempt to enjoin a shuttle launch, were among
the most important and contentious.
While in private practice, I recall quite infrequently appearing before the state legislature
to encourage passage of legislation. I believe most involved issues for the Jackson
Municipal Separate School District. The only specific legislation I recall concerned an
amendment to the state constitution to make it clear that a school oil and gas lease could
be treated as leases on private lands insofar as the lease term could continue until
production ceased. Such an amendment ultimately was adopted, several years after my
efforts. Miss. Const. Art. 8, Sec. 211 (amended 1992).
21 . Teaching : What courses have you taught? For each course, state the title, the institution
at which you taught the course, the years in which you taught the course, and describe
briefly the subject matter of the course and the major topics taught. If you have a
syllabus of each course, please provide four (4) copies to the committee.
All the following courses were taught at Mississippi College School of Law
1. Real Estate Finance & Development, Spring 1985, summer 1986, spring 1989. The
course concerned financing and security issues, as well as development variations such as
condominiums, planned unit developments, etc. I no longer have a syllabus.
2. Oil & Gas Law, summer 1985. This was the introductory course. I do not have a
syllabus.
[I left Jackson, Miss, to join the Civil Division, U.S. Department of Justice, in August
1989, I did not again apply to be an adjunct professor until 1997.]
3. Legislation, spring 1998, fall 1999, fall 2000. The course concerned the creation and
interpretation of statutes. One semester I prepared handouts for each class instead of
using a text. The disk that I have supplied contains those materials: “MCSOLlegis
Handouts”
24
466
4. Consumer Law, spring 1999, spring 2000. This course primarily concerned federal
consumer statutes, such as the Fair Debt Collection Practices Act.
5. Administrative Law, spring 2001, fall 2001, fall 2003. This was the introductory
course.
6. Judicial Administration, Mississippi College School of Law. Fall 2002. Using this
heading, I taught a course on important judges. I used a text entitled American Judicial
Tradition written by Professor Edward White of the University of Virginia, and also
discussed some Mississippi judges. The handouts are on the disk, “JudAdmin Handouts”
7. Evidence Law, Mississippi College School of Law, Fall 2006. This was the
introductory course to the subject, structured around the Federal Rules of Evidence.
8. Professional Responsibility & Ethics, Mississippi College School of Law, Spring 2007.
This is the introductory ethics course.
9. Trial Practice, Mississippi College School of Law, Spring 2007. This is a seminar-size
practical skills course, with students required throughout the semester to conduct parts of
a trial, then at semester’s end to put on an entire trial. I have a co-teacher, Robert Gibbs,
a former state trial judge who is now a litigation partner at one of Jackson’s largest law
firms.
22. Deferred Income/ Future Benefits : List the sources, amounts and dates of all
anticipated receipts from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers, clients or
customers. Please describe the arrangements you have made to be compensated in the
future for any financial or business interest.
None.
23. Outside Commitments During Court Service : Do you have any plans, commitments,
or agreements to pursue outside employment, with or without compensation, during your
service with the court? If so, explain.
If confirmed,! would like occasionally to continue my teaching at Mississippi College
School of Law. My service in the National Guard will continue for a short time. I will
follow all guidelines in the Code of Conduct for United States Judges and obtain
necessary approvals prior to engaging in any outside employment.
24. Sources of Income : List sources and amounts of all income received during the
calendar year preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other
items exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
25
467
See attached Financial Disclosure Report.
25. Statement of Net Worth : Please complete the attached financial net worth statement in
detail (add schedules as called for).
See attached Net Worth Statement
26. Potential Conflicts of Interest :
a. Identify the parties, categories of litigation, and financial arrangements that are
likely to present potential conflicts-of-interest during your initial service in the
position to which you have been nominated. Explain how you would address any
such conflict if it were to arise.
Because of my lengthy service on the state appellate court, followed in the spring
2007 by teaching at a law school I do not anticipate any of these potential
conflicts.
b. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern.
My stock portfolio is almost entirely through a 401(k). I do not have significant
other investments other than in real property. There is one rather valuable stock
ownership that I inherited from my mother, being two shares of Berkshire
Hathaway - A. I also have some valuable stock in a bank. My family recently
sold two parcels of land and I have substantial cash resulting from the sales.
Investments decision need to be made regarding those funds. I cannot identify
likely conflicts arising from the as-yet undefined investments. I plan to follow the
Code of Conduct for United States Judges, applicable statutes and guidance from
the Committee on Codes of Conduct on maintaining vigilance regarding
investments and the court’s docket.
27. Pro Bono Work : An ethical consideration under Canon 2 of the American Bar
Association’s Code of Professional Responsibility calls for “every lawyer, regardless of
professional prominence or professional workload, to find some time to participate in
serving the disadvantaged.” Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount of time devoted to each.
In private practice, I served for one year on a pro bono project in Jackson, spending time
periodically at the pro bono center fielding phone calls for legal information.
I have served on civic boards earlier mentioned. For about five years I served on the
Hinds County Mental Health Association board, with a year as president. This non-profit
association, funded through grants and donations, had a full-time director as its only paid
employee. We provided a half-way house for some of those who had left the state
26
468
hospital outside of Jackson and were being re-integrated into the community. This took
considerable effort in acquiring funding from a community development block grant. We
worked with the legislature during my tenure on getting amendments to the state
Vulnerable Adult Act. We provided information in various ways to the general public on
mental health, including sponsoring preparation of a gallery of photographs called
“Images of Madness.” That was first put on display at sites around the state and now is on
long-term exhibit at the state mental hospital.
I was a board member and then president of the Jackson Servant Leadership Corps. That
provided a home for about five recent college graduates who worked for a year with local
non-profit organizations, such as a food bank, or Habitat for Humanity, or a halfway
house. We provided leadership training and religious support as well as the housing.
Many of our members received a stipend from AmeriCotps. The idea was to create a
cadre of experienced, committed, and young leaders in the community, many of whom
would not remain full-time in charitable work but would apply their skills and interests in
whatever career they pursued. We also conducted a work project every Martin Luther
King Day, in which we synchronized more than a hundred volunteers with different
charitable organizations and churches to provide a day of service. There was a ceremony
to start the day, then one to close it out at night.
Annually since 1993 I have been a volunteer for Habitat for Humanity, though not in
2005-6. One year I spent a week working on a house that our church was sponsoring.
Others years I have given a day and sometimes two days to the construction.
28. Selection Process :
a. Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
the interviews in which you participated). Is there a selection commission in your
jurisdiction to recommend candidates for nomination to the federal courts? If so,
please include that process in your description, as well as whether the commission
recommended your nomination. List the dates of all interviews or
communications you had with the White House staff or the Justice Department
regarding this nomination. Please do not include any contacts with Federal
Bureau of Investigation personnel concerning your nomination.
I am not aware of any selection commission or committee. I had been
recommended by Mississippi’s two U.S. Senators for a vacancy on the U.S.
District Court in early 2004, and then at the end of that year for a vacancy for the
Court of Appeals for the Fifth Circuit. I went to the White House Counsel’s office
in January and then in December 2004 to interview with associate counsels and, at
the later time, also with the outgoing and incoming White House Counsel.
Another person was chosen for each of those positions. While home on leave
from Iraq in May 2005, 1 made contact with Senator Cochran and asked to be
considered for a new vacancy on the U.S. District Court. The incumbent judge
had announced that month that he would retire. No further interview was
27
469
conducted. I underwent a background investigation after my return to the U.S.
My nomination was submitted to the Senate on June 6, 2006. My nomination was
returned to the President on December 9, 2006 when the 109th Congress
adjourned.
My nomination to be a United States District Court Judge was not resubmitted.
On January 9, 2007, 1 was nominated to be a judge on the United States Court of
Appeals for the Fifth Circuit.
b. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any currently pending or specific case, legal issue or question
in a manner that could reasonably be interpreted as seeking any express or
implied assurances concerning your position on such case, issue, or question? If
so, please explain fully.
No one has asked any such questions or made such statements.
28
470
A'O-10
Rev. 1/2004
FINANCIAL DISCLOSURE REPORT
Calendar Year 2006
Report Required by the Ethics
in Government Act of 1978
2. Court or Organization
3, Date of Report
Fifth Circuit Court of Appeals
01/12/2007
5. ReportType (check appropriate type)
6. Reporting Period
(j) Nomination, Date 01/09/2007
01/01/2006
O Initial Q Annual Q Final
to
1. Person Reporting (I^ast name, First name. Middle initial)
Southwick, Leslie H
4. Title (Article III Judges indicate active or senior status;
magistrate judges indicate bill- or part-time)
Circuit Judge - nominee
7. Chambers or Office Address
Mississippi College Law School
151 E. Griffith Street
Jackson, MS 3920!
8. On die basis of the information contained in this Report and any
modifications pertaining thereto, it is, in my opinion, in compliance
with applicable laws and regulations.
IMPORTANT NOTES: The instructions accompanying this form must be followed. Complete all parts, checking the NONE box for each part
where you have no reportable information. Sign on last page.
□ NONE
EQS.H1M NAME OF ORGANIZATION/ENTITY
1. Judge Mississippi Court of Appeals
2. Adjunct Professor Mississippi College School of Law
I. Commissioned Officer United States Army
1. Commissioned Officer Mississippi National Guard
5. Visiting Professor Mississippi College School of Law
TT A fJR 47 P \yfTi WT Q fRenortine individual onlv. see no. 1 4-1 6 offilina instructions!
0 NONE - (No reportable agreements )
DATE
471
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Dale of Report
Soutbwick, Leslie H
01/12/2007
D NONE ' (No reportable non-investment income.)
DATE
SOURCE AND TYPE
GROSS INCOME
(yours, no! spouse's)
l.
2005
United States Army - salary
$73,400
2.
2006.
Mississippi National Guard - drill pay
$4,000
3.
2006
Mississippi Court of Appeals - salary
$101. 500
4.
II. Spouse’s Non-Investment IneOtn#f you were married during any portion of the reporting year, please complete this section, (dollar amount not
required except for honoraria)
0 NONE - (No reportable non-investment income,)
DATE SOURCE AND TYPE
1. 2006 W.S. Quinn CLU- salary
2 .
IV. REIMBURSEMENTS - transportation, lodging, food, entertainment
0 NONE - (No such reportable reimbursements.)
SOURCE
DESCRIPTION
472
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Southwick, Leslie H
01/12/2007
C] NONE - (No such reportable gifts.)
SOURCE DESCRIPTION yajjjE
1. exempt
VL LIABILITIES. (7n:Ca:l!S those of spmme and depends:! ehti'en. Sesppi 32-3-1 ofiajtrjrtitms.)
S) NONE - (No reportable liabilities.)
VALUE CODE
1 .
CREjMTQR
DESCRIPTION
473
FINANCIAL DISCLOSURE REPORT
Page 1 of 1
m INVESTMENTS and TRUSTS -i**
N mne of Person Reporting
Date of Report
Southwick, Leslie H
01/12/2007
e, value, tracscotions (indude* those of the spouse and dependent children. Sec pp, 34-57 of filing mstmrtions.)
A.
Description of Assets
a
Income during
reporting period
C
Gross value at end of
reporting period
D.
Transactions during reporting period
Place ’(X)* after each asset exempt
from pries' disclosure
Amount
Code 1
(A-H>
Type feg,
djv. rent, or
int)
Value
Code2
{UP)
Value
Method
Code 3
(Q-W)
Type (o.g
buy, sell.
redemption)
(2)
Date:
Month -
Day
0)
Value
Code 2
(J-P)
(5)
Identity cf
buyer/selles (if
transaction)
1 i NONE (No reportable income, assets, or transacticsu)
1,
Berkshire-Hathaway - A common
■
M
■
exempt
■
First National Bank Group, Inc. common
C
Dividend
M
T
■
■
a
Parcel# 1, Mineral Interest, 2001 appraisal
None
J
Q
a
Parcel # 2, Mineral interest, 2001 appraisal
None
■
H
■
Parcel # 3, Hidalgo County, Tex., 2001 appraisal
No™
H
Q
■
Citizens National Bank account and CD
c
Interest
■
■
m
a
State Bank & Trust account and CD's
B
Interest
■
a
MctLifo Bank Account
D
Interest
a
Jackson National Beneficiary Account
A
h*n»
j
T
10.
Prudential Financial Variable life: Conservative
Balanced
None
j
T
u.
Prudential Financial Variable Life: Flexible Managed
None
j
T
12.
Prudential Financial Variable Life: Equity
None
K
■
13.
Prudential Financial Variable Life Diversified Bond
None
J
T
14.
Prudential Financial Variable Life: Jcnnison
None
J
T
15.
Prudential Financial Variable Life: Small Cap Stocl
None
U
■
m
■
1«.
Trustmaik National Bank account and CD
A
■
■
17.
Bancorp South CD
B
M
T
|
1 liwrfmeffhwitkxhs.
B -Jl.WI-J2.yiXI
< f ~$2,V«.S5,<»H
l> - i5,(X*l-$| J.WXI H - SlSdXU-JWWU
(See Columns Bt anti 04)
h' -JSd.Wt-Smi.flW
o -iHXi.tWLJLOrtyiot)
Ht -$l,WX>.tX)145,MXyxW
H2 -More than IVXXHXW
2, Value cedes.
1 -51 3.000 or less
K -JI5.001450JXS)
L - JSQOOf-iirk.OOCt
M -5i00.001-J2TO,«0
(6<e CpIwjto ClwdDJ)
n -sawxHWjoo.w
P> “J25,«00.0(»l-5J05UW> < duO
0 “J5QW-JI,«K5.0QG
PI - il.axioui-js.Ooo.wo
P4 - S.M'>fc than J50.0tiri,Criu
n -JS,000,(»H'J25,000,«V)
3 Vhtve Method Orttts
0 -ApifiUS.il
R - Cost (Real Estate Only)
S - Assessment
f - Cash/MaArt
(SeeCotumaCS)
U ~Bo<*Y*h»
V -rather
W - Estimated
474
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Date of Report
Southwick, Leslie H
0J/12/20C7
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate past of Report.)
FINANCIAL disclosure report
Name of Person Reporting
Dale of Report
Southwick, Leslie H
01/12/2007
XX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C. § 501 et seq., 5 U.S.C. § 7353, and Judicial Conference
regulations.
Signature^
Date_
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY
BE SUBJECT TO CTVIL AND CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
475
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
476
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Listed Securities
Principal Investors Fund Portfolio $ 521,115
Berkshire Hathaway Class A Common 2 1 7,000
Prudential Financial 9,064
Total Listed Securities $ 747,179
Unlisted Securities
First National Bank $229,140
Real Estate Owned
Personal residence
V* interest, Texas farmland
Total Real Estate Owned
$ 375,000
180,000
555,000
477
AFFIDAVIT
I, L - c £ ^ ^ kt^jrc^C , do swear that the information
provided in this statement is, to the best of my knowledge, true and accurate.
(DATE)
(NAME)
(NOTARY)
NOTARY TUBI.IC STATE OF MISSISSIPPI AT LARGE
MY COMMISSION EXPIRES: Ocl 23, 2010
BONDED THRU NOTARY PUBLIC UNDERWRITERS
478
Senator Brownback. Thank you. And congratulations on each of
you being moved thus far.
I have got some questions I would like to ask, and we can go
down the row if you would like. But one I would like to ask you
about is just a thought or your opinion on this topic. Three of you
are judges. Mr. Jonker, I believe you have clerked for a judge.
Just this notion of judicial restraint has been one where we are
seeing a lot more conflict. I call it at times “tectonic plates” moving
back against each other as far as the legislative and executive
pushing against the judicial.
I asked John Roberts, during his confirmation hearing, what is
the check and balance on the judiciary? His answer was, judicial
restraint. An appropriate answer. But it needs, then, further defini-
tion. How do you determine whether or not this is a topic that the
judiciary should not be involved in, that the judiciary should show
restraint on?
I would just appreciate a thought, as you look at the topic of judi-
cial restraint and you have a case coming in front of you, that this
is a questionable area whether or not the judiciary should cover it
or not, what goes on in your mental processes as your determina-
tion of whether this is something subject to a Federal court to re-
view or not? Mr. Jonker?
Mr. Jonker. Thank you, Senator. I think the first place that I
begin when I think about judicial restraint is with the text of Arti-
cle 3 of the Constitution itself, which plainly limits the judicial
power to cases and controversies that come before it.
And out of that language, as I know the Senate Committee un-
derstands and realizes, a great variety of justifiability doctrines
have evolved which I think require the judge to carefully examine
whether the particular issue that has come before him or her is
properly conceived for judicial determination.
I think after you go through those justifiability tests, you also
have the statutory jurisdiction gateways that this body puts in
place which further limit and restrain what the judiciary does.
Of course, any policy choices that the Congress makes and em-
bodies in legislative enactment must always constrain the judge in
his or her role, because it is certainly not the judge’s role to impose
personal predilections of his or her own. Then, finally, you have the
great body of case law that I think constrains every judge who is
rendering a decision.
Senator Brownback. Why is this an issue now? Why is this com-
ing up more and more at this point in time in history than, say,
over the past 50 years? Or perhaps it has been coming up that
much and I have just not been as aware of it. But do you have a
thought on that?
Mr. Jonker. Well, I do think there has been, probably since the
founding of the Republic, inherent tension between the different
branches of government, because I think the Founders did wisely
build that into the structure of things.
I think at times when we are all cognizant of public policy issues
that are coming before the country, where there are strong feelings
on either side, that it is only natural that the various bodies of gov-
ernment would push and pull next to each other. I think that will
479
always be a part of the process and I think it would be incumbent
on whoever has the honor of being a judge.
If the Senate so confirms that on me, to always remember that
in the midst of that tension, it is the legislature that makes the
policy choices and it is the judge who applies them, regardless of
whether the judge agrees with them. I do pledge to you that that
is what I would do, if I am fortunate enough to be confirmed.
Senator Brownback. Judge Maloney?
Jude Maloney. Thank you, Senator. To answer your second
question first, I think the discussion and the public debate on this
particular issue is part of a healthy debate about the relationship
between the three branches of government, the executive, the legis-
lative, and the judicial branch of government.
I think in terms of cases that come before the trial court, as Mr.
Jonker has already indicated, the doctrines of justiciability are very
important to first examine whether this is a case in controversy
that requires the judicial branch of government to get involved.
Once having determined that, then the issue is, in my judgment,
applying the law as it is given to us by the legislative branches of
government, the executive branch of government, and the policy-
making branches of the government, apply the law as written
based on the law as it is given to us, both in statute and in case
law, and apply the precedent and follow the dictates of the prece-
dent to render a decision in the case. If I am confirmed by the Sen-
ate, that would be the approach I would take.
Senator Brownback. Judge Neff?
Jude Neff. Thank you, Senator. I think probably the watch word
for judicial restraint, and indeed for most of judicial work, is intel-
lectual honesty. If we have to look at the narrowness of the ques-
tion in front of us, if we look to legislative guidelines, if we look
to precedent honestly, and intellectually honestly view what is in
front of us, that is ultimately, in my view, the restraint on the
judge. The judge has got a role to play in our system.
The fact that there is, as Mr. Jonker has indicated, longstanding
tension built into our system, and it is healthy, I think, and it is
something that we struggle with all the time as a country, and it
has, I think, made us healthier. It has helped to establish our judi-
cial independence, but within the framework of the guidelines that
are set by the Congress and by the executive.
Again, as the others, if I am fortunate enough to be confirmed
by the U.S. Senate to sit on the Western District of Michigan, I will
do my very best to remain within those confines.
Senator Brownback. Judge Southwick?
Judge Southwick. Senator, it is hard for me to come up with
something fresh after such comprehensive review of the issue by
my three colleagues today. I would say, from my perspective as an
appellate judge over the last nearly 12 years, where courts go
astray is in failing to decide the case in front of them, trying to use
it as vehicles to go elsewhere, maybe further than they need to go,
not to decide the case purely on the facts as honestly understood,
and interpretation of the law as written in the precedents; like
cases are supposed to be decided alike.
I think an honest interpretation of facts and law is one of the pri-
mary restraints. To use Judge Neffs term, the intellectual honesty
480
of the exercise is absolutely critical for judges to keep within the
bounds that they are supposed to stay in any particular case.
Senator Brownback. Three of you have served as State judges,
a court with general jurisdiction, and now you go to a court of lim-
ited jurisdiction. Have you, at any time, wondered when you have
watched Federal judges rule, saying, I do not think that one be-
longs to you guys?
Jude Neff. Well, if you will let me speak to that, Senator.
Senator Brownback. I would be happy to. I have got to think
you sat there in your chamber at some time and said, now, I do
not think you guys ought to be chewing on that one.
Jude Neff. One of the watch words in my chambers, and one of
the first things I talked to my new law clerks about, is we are not
ever going to decide anything other than what is directly in front
of us. I think that is even more important on the Federal bench.
You have to make sure, first of all, that the parties in front of
you have standing, second, that the court has jurisdiction, and that
it is a proper topic to be justified to be there.
The narrower you can be as a judge, the more constrained you
can keep your decisionmaking, in my view, the better off you are
in the long run. It gets you in a lot less trouble eventually.
Senator Brownback. Judge Maloney?
Jude Maloney. Senator, I would concur with Judge Neffs com-
ments. I cannot say that I have speculated about why a particular
Federal court was handling a case as opposed to a State court, but
I think the jurisdiction of the Federal court is fairly well delin-
eated.
As Judge Neff has indicated, if I am confirmed, I will make sure
that the appropriate jurisdictional bases are there before the case
is decided. The parties need to have standing. Case in controversy
requirements need to be met as well. So, I will be very careful on
that subject matter if I am confirmed by the Senate.
Senator Brownback. It strikes me, in the last campaign, I was
up for reelection in 2004. One of the big issues were the courts and
people feeling like things were being decided by the courts that the
people ought to decide through their legislative bodies. Now, I hap-
pen to have a preference for legislative bodies deciding things, and
I recognize there are pressure back and forth.
Although, through a lot of our history there has always been the
push for authority that has been through the executive and legisla-
tive branch. That is usually what historians chronicle, is, well, the
President was more powerful in this period of time and less power-
ful in that. Now I think historians would have to look at this period
of time and ask about the power of the court. At least, that is what
the people are feeling.
That is why judges, it seems like, become a lot more of a hot po-
litical topic, because people look at it and say there are things
being decided there that I think ought to be decided by the people,
and the court moves in and says it is a constitutional issue, and
therefore you cannot deal with it unless you amend the Constitu-
tion.
That has really stirred a big movement across the country. I just
point it out to you because I think each of you could well serve on
a Federal bench for a number of years, and I hope you do. I think
481
each of you will do an outstanding job. It does strike me that this
is going on.
I appreciate, Judge Neff, your comments that this is a healthy
thing. I begin to wonder after a while when it becomes so much,
that then you get legislative bodies saying, how do we limit the ju-
risdiction of the Federal court? Let us remove this jurisdiction
under the authority that we have in the Congress.
I personally do not like that tool. That, to me, is a blunt instru-
ment approach tool. It would be much better if there were judicial
restraint, that you could just say, no, I trust the judges, that they
will decide the issues that they should rather than us removing ap-
pellate court review in the Congressional bodies.
I hope this is one that we can all, through a lengthy dialog and
discussion, each looking at our own roles, be one that we work
through over a period of time in a healthy fashion for the good of
the Republic. I think it is a very important one, and certainly a key
one for our times now.
I have got to ask you, Judge Southwick, this Presidential Also-
Rans, for anybody in the U.S. Senate, that is always considered a
great topic. What is the key to being an also-ran? Is it just that
you had this interest in people that also ran, but did not win?
Judge Southwick. Well, I have never had anybody, to my face,
psychoanalyze what it means to have written a book about Presi-
dential losers, and I do not know if anybody is reflecting on what
that might mean in here right now. There seemed to be a niche
there. I was interested.
Perhaps the idea of looking at what might have been intrigued
my fancy. So it is a book on the losing major party nominees for
200-plus years. What makes an also- ran is also what makes a
President, just not quite as much, I suppose. They have risen to the
penultimate level of American politics, but could not quite get
across the finish line ahead of somebody else. So, I consider it an
honorable category of individuals.
Senator Brownback. So is it a book of ideas or is it a book of
failed campaigns?
Judge Southwick. It is biographies of the losing major party
nominees. There may be some ideas in there, but I do not particu-
larly analyze why they lost. I just try to suggest who they were in
biographical form.
Senator Brownback. That is an interesting topic.
Judge Southwick. Well, I did have my concern when Senator
Cochran mentioned that in here, about what that might engender.
[Laughter.]
Senator Brownback. Well, there is a caucus in the U.S. Senate
of people who swear that they never want to run for President. I
understand there are only two members.
[Laughter.]
So, there are a lot of others that say, well, all right, maybe this
year.
We are pleased to have you all here. In the process, hopefully we
will move your nominations going forward. I appreciate your at-
tendance and appreciate your willingness to answer questions.
There may be written questions submitted to the record, and if so,
those will be sent to you directly as well.
482
I wish you all godspeed in moving forward. This is an important
position. To be a judge is a key position, and three of you are cur-
rently serving in that. This is something that society looks up to.
People can be mad at a judge or concerned, but this is a position
of honor and authority, so we want to make sure that we have peo-
ple who have the highest intellectual capacity and good hearts, too,
so that they can process and analyze the case, but also that they
have that heart that looks at it and has wisdom along with the
knowledge to be able to apply that. And it is key. It is a key spot.
So, I wish you all the best.
I do have a statement to put into the record for Senator Leahy,
who unfortunately could not be here.
[The prepared statement of Senator Leahy appears as a submis-
sion for the record.]
Senator Brownback. As I said, the record will remain open for
the requisite number of days. You may have written questions sub-
mitted to you.
With that, thank you all for coming.
[Whereupon, at 3:42 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record follow.]
483
QUESTIONS AND ANSWERS
75 nc Anniversary
3931 - ZOOS
RfiBgSr J, JonKSS
616.732,2161
Fax 616.222.2161
rjonicef@wnj.com
September 26, 2006
The Honorable Alien Specter
Chairman
Committee on the Judiciary
Uni led States Senate
Washington, DC 205 iO
Dear Mr. Chairman:
Attached arc my responses to written questions from Senator Leahy.
IUhjov
Attachments
cc: The Honorable Patrick J. Leahy
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510
Waiter No»«Ott 6 J-jds LIP
Responses of Robert James Jonker
Nominee to be United States District Judge for the Western District of Michigan
to the Written Questions of Senator Patrick J. Leahy
You have been involved in opposing the efforts oflndian tribes to develop
casinos under the Indian Gaming Regulatory Act both profession ally and as u
member of “23 Is Enough", a Michigan Political Action Committee dedicated to
stopping the proliferation of gambling venues in Michigan
A. As a federal judge, will you be able to fairly and impartially apply the law
in cases involving the efforts of Indian tribes to engage in economic
development projects under the Indian Gaining Regulatory Act?
Response; Yes.
B, As the one undemocratic branch, the courts have a special responsibility
to make sure they arc available to those Americans most in need of the
courts to protect their rights. What assurances can you give that you will
be open to all viewpoints and that litigants coming into your courtroom
will be treated fairly regardless of their skin color or political beliefs, and
regardless of whether they are rich or poor, defendant or plaintiff?
Response: I believe that one critical characteristic of any judge is the ability to hear
and decide the cases lha: come before the court fairly and impartially based on the
record before cne court I believe I have that cnanctensiic and that I have
derr.or$lra:ed ir; the course of my processional career As a leader :n my firm 1
have participated in the Institute for Healing Racism, a program sponsored b> the
Woodnck Institute :o promote understand-ng and heahng among the races. As the
former chair of our firm’s Professional Stall Committee. I have worked on the law
firm's diversity initiatives and embraced die firm’s diversity goals. As a private
attorney, I have accepted prisoner civil rghts cases on a pro bor.o basis, i have also
been active as a member and officer of the Western District Chapter of the Federal
Bar Association which, among other things regularly addresses efforts to improve
legal services for the poor and underrepresented.
According to your response to the Judiciary Committee’s questionnaire, you are
a member of “23 Is Enough", an organization that has come under fire for
distributing a link to a website with racist depictions of and rhetoric about
N ative Americans as parr of its campaign to stop the Guo Lake Tribe of
Pottawatorai Indians from opening its proposed casino. Several members of the
Michigan Legislature have criticized “23 is Eoough M for its “racial intolerance”
and * anti -Native American sentiment.”
A- When did you first become aware of the involvement of “23 is Enough” m
the distribution of this material?
485
DOJ
Response: The manager of 23 is Enough (John Helmholdt) distributed an article
describing iha economic impact of gambling in Niagara Falls. New York, to an e-n.itl
list. The article itself did not include any racially intolerant rhetoric or depictions, but
simply described economic information regarding the situation n Niagara Falls.
A short time after Mr. Helmholdt distributed the art'c'e a representative of a Native
American Tnbs issued 3 press release stating tha< the author of the article maintain jo
3 '•vet sire wrh racial!) integrant met one ard depiction; The onicle tr.ai Mr.
Heimholdt rad distributed did not tt>e!f have any suer rnr.or.c Or depictions ard did
not link to any such webs-K, and neither Mr. Helmholdt no- ar.y member of 23 is
Enough had any prior know ledge of the author’s website V.'hen Mr. Helmholdt saw
the press release after the fact he prcmcLy investigated u, determined that the author
of the article did maintain such a website, immediately sent a written apology to the
Native American Tribe (cony attached); and immediately denounced, publicly and
privately on behalf of 23 is Enough and all its members, any and all racially intolerant
rhetoric and depictions.
B. What action, if any, did you take when you learned of it?
Response: I w ho.ehcartediy endorsed Mr. Helnholdt’s letter of apology far fatbng to
discover tr. advance the tie bstw asn die article’s author and the offensive website 1
also endorsed Mr Helmholdt s denouncements, on heraif of 23 :s Enough and 3u us
members, of racially intolerant depictions and rhetoric of all 'end 1 also erdorsed
Mr Helmholdt’s decis.cn to institute new procedures for investigating the
background of ajlhors before sending out information urder an author’s bylina.
3. You have represented a client called Taxpayers of Michigan Against Casinos
(TOMAC) in several challenges to proposed Native American casinos in
southwest Michigan. These litigation efforts against the three Southwest
Michigan Pottawatomi tribes resulted in a delay of their casino openings.
According to press reports, your firm.. Warner Norcross & Judd LIP, has
received payments from Boyd Gaming, a company vvhich operates a riverboat
casino in nearby Indiana, which would be a competitor of the Indian Tribes’
casinos. Press reports also describe Boyd Gaming’s relationship with Kevin
Flynn, a Chicago businessman with reported ties to organized crime, whom it
employed to block foi five years two of the three tribal land-in-trust application.?
TOMAC opposed through litigation in which you were involved.
A. How is your firm’s represen I ation of Boyd Gaming consistent with
TOM AC's position against the proliferation of casinos? Was this an
attempt to further Boyd Gaming’s interests by preventing competition of
casinos run by Indian tribes?
2
486
Response: TOMAC :s a bcm rice ctizsn group whose members oppose proliibrcnon
of gaming venues ia than comm unity. Our tinn’s representation of TOMAC- and
other citizen groups with stru'a- goals in Inc State, has always bean consistent in
advocating against die establishment of any new gaining venue. To my know :edge,
neither 1, nor my law firm, nave ever advocated a position on behalf of any party
promoting the establishment of a new gaming venue.
G. I am concerned about your firm’s representation of clients with apparent
conflicts in positions. Generally, federal judges have great discretion
when possible conflicts of interest are raised to make their own decisions
whether or not to sit on a case, so it’s important th3t judicial nominees
have a well-thought out view of when recusal is appropriate. Former
Chief Justice Rehnquist made clear on many occasions that he
understood that the standard for recusal was not subjective, but rather
objective. It was whether there might be any appearance of impropriety.
How do you interpret the recusal standard for federal judges, and in
what types of cases do you plan to recuse yourself? I’m interested in
specific examples, not just a statement that you’ll follow applicable law.
Response: If confirmed as a United Stares District Court Judge, I would follow all
applicable laws anc ethical rules governing recusal, including 28 U S.C. 455. I would
also seek me advice of the Ethics Committee of the Judicial Conference of the United
States m appropriate c^scs U is my understanding that under the laws governing
recusal, a judge should lecuse himself where a reasonable person, knowing all the
facts, would have an objectively reasonable doubt about the judge s ability to preside
impartially.
If confirmed. I would recuse myself m any case involving a matte: that I have
personally handled as a private attorney, or that anyone in my firm handled during my
affiliation with the firm. Generally, recusal decisions would necessarily have to be
made on the particulars of each individual case.
487
08/27/2088 15; 08 i'\>.
_ Warner
'^jj j No rcro ss &Judd .
P5 r/r nnit/ersary
7 9 J J - 200 6
R*:far J, JONKER
September 27. 2006
The Honorable Aden Specter
Chairman
Committee on the Judiciary
United Slates Senate
Washington. DC 20510
Der.: Mr. Chairman:
RJJrjoy
Attachments
Attached are my respond to written questions from Senator Kennedy.
Sincerely. ^
cc: '1 he Honorable Patrick J. Leahy
Ranking Member
Committee cn the Judiciary
United States Senate
W a si; i ngton, DC 205 1 0
488
006 15:09 FAX
DOJ
@003/006
Responses of Robert James Jonker
.Nominee to be United States District Judge for the Western District of Michigan
to the Written Questions of Senator Edward M. Kennedy
I) The organization 23 is Enough, to which you reportedly belonged, has been
criticized recently for distributing materials by an individual who displays racist
images and rhetoric on his website.
a) Please explain what role or roles you have had in the organization 23 is
Enough, including any governing role you have held and the number of
meetings you have attended.
Response- I have been a member of 23 is Enough, and nave participated in several
meetings I do not know the exact number of meetings, but it is fewer than ten. 1 have
not been an officer of the organization.
b) Did you remain a member of 23 is Enough after it disbursed the derogatory
material? If so, why?
Response: As soon as the President nominated me to become a United States District
Judge for the Western District of Michigan on June 28, 2006, 1 informed the manager
oi 23 is Enough, John Helmholdt, that I would no longer participate m any meetings
of the grow, I also informed Mr. Helmholdt that I would, if confhmec. resign my
membership.
About one month laier, Mr. Helmholdt distributed an article describing the economic
impact of gambling m Niagara Falls, New York, to an e-mail list. The article itself
did not include any racially intolerant rhetoric or depictions, but simply described
economic information regarding the situation in Niagara Falls.
A short time after Mr. Helmholdt distributed the article, a representative of a Native
American Tube issued a press release stating that the author of the article maintained
a website with racially intolerant rhetoric and depictions. The article that Mr.
Helmholdt had distributed did not itself have any such rhetoric or depictions and did
not link to any such website, and neither Mr. Helmholdt nor any member of 23 is
Enough had any prior knowledge of the author’s website. When Mr. Helmholdt saw
the press release after the fact, he promptly investigated it: determined that the autho-
of the article did maintain such a website; immediately sent a written apology to the
Native American Tribe (copy attached): and immediately denounced, publicly and
privately on behalt of 23 is Enough and all its members, any and all racially intolerant
rhetoric and depletions.
- 1 -
489
/ 2006 15 10 FAX
DOJ
I wholchcansdly endorsed Mr, Helnholdt's letter of apology for fading to discover m
advance the tie between the article’s author and the offensive website i also
endorsed Mr Helnsholdt’s denouncements, on behalf of 23 is Enough and ail its
members, of racially intolerant depictions and rhetoric of all kind. I also endorsed
Mr, Helmholdt’s decision to institute new procedures for investigating the
background of authors before sending out information urdei an author's byline
2) Your questionnaire states that you have represented citizen groups, including
Taxpayers Against Casinos and Citizens Exposing the Truth About Casinos.
You also included two anti-gaming cases in your list of the ten most significant
matters which you personally handled. Please provide a capsule summary of
each anti-gaming case in which you have been involved. Describe the extent of
your involvement in these matters and provide the mission statement or a
summary description of the groups that you represented.
Response I have been involved as lead litigation counsel ir. three federal cases on
behalf of three citizens groups from Michigan. Each group’s mission involves
stopping the proliferation of gambling venues in the communities of the affected
citizens. The three cases are:
1) Taxpayers of Michigan Against Cay. nos (TOMAC) v. Norton , 240 F. Supp. 2d
45 (D.D.C. 2003), ajfd 433 F.3d 852 (D.C. Cir. 2006);
2) Citizens Exposing Truth about Casinos (CETAC) v. Norton (now Kemp thorne,
Case No. 1 :02-CV-01754 (D D.C ); and
3) MichGo v. Norton (now Kempthomej, Case So 1:05-CV -01 1 SI (D.D.C.).
Each of the cases involves federal law issues under the National Environmental
Policy Act, the Indian Gaming Regulatory Act and the United States Constitution.
I have also been involved as lead litigation counsel in one case in the courts of the
State of Michigan on behalf of TOMAC. The case involves the proper procedure
under the State Constitution for approving gambling compacts between Native
American tribes and the State See TOMAC v. State , 254 Mich. App. 23 (2002). aff'd
in part, rev'd in part and remanded , 471 Mich. 306 (2004). cert, denied . 543 U.S.
1146 (2005). One portion of the case continues on remand. See TOMAC v. State ,
268 Mich. App 226 ( 2005), Iv granted 474 Mich. 1097 (2006).
3) In both your personal and professional capacity you have challenged Michigan
Indian tribes 1 rights under the Indian Gaming Regulatory Act to engage in
economic development projects.
a) W hat h > our position on Native American sovereignty as it relates to
gaming?
- 2 -
490
DOJ
Response: The United States Supreme Court has long recogn.zed mat "Indian
nations possess ail powers of a sovereign government except as limited by lawful
federal authority.” See Cohen's Handbook of Federal Indian Law (2005 Ldirion) at
A02[ 1 ] ( referencing and discussing case law development at footnote 1 49.} The
contours of inherent m >al sovereignty and the power of the federal government
continue to be a matter of litigation before the Supreme Court. See. e.g , United
States v. Lara, 541 U.S. 193 (2004); Atkinson Trading Company. Inc.., v. Shirley 532
U.S. 645 (2001). Moreover, the United States Congress has enacted the Indian
Gaming Regulatory Act. which prescribes the conditions under which Native
American tribes may construct and operate gambling venues as means of economic
de*. ebpmert. If confirmed as a United States District Court Judge, I would apply all
relevant Supreme Court precedent. Sixth Circuit precedent, and statutory law in tins
area.
b) Do you believe that federally recognized tribes have the sovereign right to
establish casinos as a means to their economic development? If you believe
there are any limitations, please explain those limitations as you interpret
them.
■Response: The United States Supreme Court has long recognized that “Indian
nations possess all powers of a sovereign government except as limned by lawful
Federal authority.” See Cohen's Handbook of Federal Indian Law (2005 Edition) at
4 02 [1 ) (referencing and discussing case law development at footnote 149.) The
contours of inherent rribal sovereignty ar.d the power of the federal government
continue to be a matter of litigation before die Supreme Court See, e.g., United
States v. Lara, 541 U.S 193 (2004); Atkinson Trading Company, Tkc.. v. Shirley, 532
U.S. 645 (2001). Moreover, the United States Congress has enacted the Indian
Gaming Regulatory Act, which prescribes the conditions under which Native
American tribes may construct and operate gambling venues as means of economic
development. If confirmed as a United States District Court Judge. I would apply all
relevant Supreme Court precedent. Sixth Circuit precedent, and statutory law' tn this
area.
c) As a federal judge will you be able to fairly and impartially apply the law in
cases involving Indian tribes?
Response; Yes.
E
161 Ottawa Av-a NW, Suite Gr2--C< RapidO, tY*>o.';ig3n
c-=ra ; js:6> 235-5560x14 * -ax -•V.'S, 21
August 16, 2005
Chairman D.K; Sprague
Gun Lake Band of Pottawatomi Indians
PO Box 218
Dorr, Ml 49323
Deaf Chairman Sprague:
On behalf of 23 is Enough, 1 want to formally apologize to you and all tribal members m highlighting
the opinion piece from Frank Parlaio, Jr Let me make it perfectly clear that we neither hold nor
condone his racial cultural viewpoints, and we denounce any and all of his culturally insensitive
Ac first g’.ar.ce of this letter, w-e were immediately struck by how the consequences of the Niagara Fahs
casino seemed to capture the predictions, we have been tr.?.iang for West Michigan. His piece toe used
solely on eccncrcuc and social problems, which was the only reason we highlighted the issue. No r a
single reference was made to citner his website or any of his inappropriate cultural sentiments and
prior to year press release, we were completely unaware of his racial viewpoints We regret our lack
. of oversight id not checking his background, n is inexcusable. I assure you that had we known about
his anti-Indian opinions, we would nsver have drawn attention to anything coming from him.
However, this does not detract from the facts surrounding the economic and social damage that the
casino has forced car Niagara Falls, all of which arc corroborated in liter ally dozens of other articles
and studies. These emulate very closely what we have echoed for years:
IV--9 Marco
BcM'-i NicxcW
Tim OOenovsn
•Vn Orman
Pv-$ ^MOKICOjCA
■>c* «ostr*yifc*si
f &e PrVc«rarocH«v
0*"* - 5 «X»r
JIT
Oxa S iCCVC
A r "i-jt
wwel TAnar>
* Pathological gambling has risen
* Bankruptcies have increased and the tribe holds 100 mortgages cm local residence*
* Crime :s up
* One or more jobs have been lost for every one created by the casino
* Niagara Falls’ convention business has bean devastated
* Millions have been taken out of die local economy - $1 million gambled away every
24 hours by those who can least afford it
* Unfair cempetmcn from untaxed, unregulated businesses on tnbal land like
restaurants, conventional hall, hotel, gift shops, and spas
* Two hotels have foreclosed and a third has closed its doors
* Restaurants have been run out of business
* S3C9 million his been squandered in gambling losses
The rhetonc and materials of Frank Pariato, Jr. that have smee come to light are disturbing You and l
will both agree that such opinion has no place in the dialogue concerning the proposed casino and we
ara ashamed that his blatant intolerance was given an„« undue attention because of cur mistake
Again, ws smeere’y apolog-ze that our error has caused your Tribe any discomfort or pain, and wo
want to picture tha* such »n oversight will never happen aga-.o If you fed the Deed to discuss this issue
further. I invite you to contact me at (6 16} 255*93aQ x!4 or hc Lmholdt'uJcGcsi^vnn Mtn
492
SUBMISSIONS FOR THE RECORD
STATEMENT OF SENATOR CARL LEVIN ON THE NOMINATIONS OF ROBERT
JONKER, PAUL MALONEY and JANET NEFF TO THE FEDERAL BENCH OF THE
WESTERN DISTRICT OF MICHIGAN
September 19, 2006
I want to begin by thanking the Chairman and Ranking Member of this Committee for
holding this hearing today,
I am pleased to support three Michigan nominees, Robert Jonker, Paul Maloney, and
Janet Neff whom the President has nominated to the federal bench in the Western District of
Michigan.
I would like to welcome Mr. Jonker. His wife Nancy and his sons Jonathan and
Benjamin were not able to be here today because of school commitments. Mr. Jonker graduated
with honors from Calvin College in 1982, then went on to earn his J.D., s umma cum laude, from
the University of Michigan Law School in 1985. After graduating from law school, he served as
a judicial law clerk to the Honorable Judge Feikins of the U.S. District Court for the Eastern
District of Michigan and has worked for almost 20 years in private practice, currently practicing
in the areas of environmental and commercial litigation law. He has been granted many awards
including the Order of Coif and the Robert S. Feldman Award. He also serves as a member of
several professional and community organizations.
I would like to welcome Judge Paul Maloney. His wife Marie was not able to be here
today. Judge Maloney graduated from Lehigh University in 1972, and received his law degree in
1 975 from the University of Detroit School of Law. He served as an Assistant Prosecuting
Attorney for Berrien County and was appointed Chief Assistant Prosecuting Attorney and then
Prosecuting Attorney before joining the United States Department of Justice as a Deputy
Assistant Attorney General in 1989. In 1993, Judge Maloney was appointed Special Assistant to
the Director of the Michigan Department of Corrections. Judge Maloney currently serves as
Chief Judge on the Berrien County Trial Court and is a member of the Lakeshore Rotary Club as
well as various other professional and community organizations.
Finally, I would like to welcome Judge Neff, her husband David and daughter Meredith.
Judge Neff graduated with honors from the University of Pittsburg in 1967, then graduated from
Wayne State University Law School in 1970. Judge Neffhas had a distinguished legal career.
After law school. Judge Neff served as an estate and gift tax examiner for the Internal Revenue
Service and then a research attorney for the Michigan Court of Appeals, before becoming an
assistant city attorney for the City of Grand Rapids. Judge Neffhas also worked in private
practice, served as a commissioner for the Michigan Supreme Court and then as an assistant
United States attorney. Judge Neff currently serves on the Michigan Court of Appeals. She has
been granted numerous awards and honors, including the Outstanding Member for 2006 of the
Women Lawyers Association of Michigan. Judge Neffhas served on numerous professional and
community organizations, including the Easter Seal Society, Women’s Resource Center, Junior
Achievement and United Way of Kent County.
We are fortunate to have Mr. Jonker, Judge Maloney, and Judge Neff devoted to public
service. I look forward to working with my colleagues to move these nominations promptly
through the Senate.
493
Statement of Senator Patrick Leahy
Ranking Member, Senate Judiciary Committee
Hearing on Judicial Nominations
September 19, 2006
Today, for the third straight week since the Senate returned from August recess, the
Committee will hear from four candidates for lifetime appointments to the Nation’s
federal courts. With the work of Senators Levin and Stabenow, we are expediting
consideration of three nominees for the Western District of Michigan, Paul Lewis
Maloney, Robert James Jonker, and Janet Theresa Neff. Had the President tried sooner
than July to provide nominations for many of these vacancies still outstanding, we could
have been more productive this year. From the beginning I have urged the President to
work with us on consensus nominations and I have worked hard to proceed. I do so now,
even at this late date in the session, and in spite of the pocket filibusters employed by
Republicans to stall more than 60 of President Clinton's qualified judicial nominees.
I worry that, like so much of the Nation’s pressing business over the last two years, they
could be derailed by the misguided priorities of the Bush-Cheney Administration and the
Republican leadership. With so little time remaining in this Congress, I would have
hoped that the Administration and the Republican leadership would be anxious to make
up for lost time by trying, at last, to address the many urgent and unresolved needs of
Americans.
Instead, today we will spend hours on the Senate floor debating the nomination of Alice
S. Fisher for a position at the Department of Justice for which there remain significant
outstanding questions and be forced to debate controversial nominees in Committee.
I had hoped that we could join together to change course from the failed policies that
have stretched from the Persian Gulf to the Gulf Coast and left America less secure and
set us back as a Nation. Regrettably, rather than learn lessons from these failures, it
appears that the President and his political allies in the Senate are intent on staying the
course.
As I have noted the last few weeks, the Administration has also chosen to stay the
disastrous course on judicial nominations by choosing to renominate five extremely
controversial choices for lifetime positions on the Nation’s highest courts. These five
nominations represent a troubling group. This Administration seems intent on heeding the
marching orders of the narrow, special interest groups on the right and picking fights.
While I have urged the Senate Republican leadership to join with us in the waning days
of this Congress to do the work of the American people, it appears these last weeks they
will take the Administration’s bait and waste valuable time and resources on these
troubling nominations.
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Squandered Opportunities
An editorial in last Wednesday’s Richmond Times-Dispatch entitled, “No Vacancies,”
highlights the Administration’s bankrupt approach to judicial nominations, such as that of
William James Haynes II to the Fourth Circuit. The editorial criticizes the
Administration for its failure to turn vacancies into judges by pursuing political fights.
According to the Richmond Times-Dispatch:
“The president erred by renominating Haynes, and may be squandering his
opportunity to fill numerous other vacancies with judges of right reason.
This marks the third time Bush has nominated Haynes, and likely will
present Senate detractors a third opportunity to deny him a seat on the
bench. Much of the opposition focuses on opinions Haynes issued in his
current position as general counsel to the Department of Defense. Critics
say the policies Haynes helped develop led to torture, such as the abuse of
prisoners at Abu Ghraib prison.
As elections draw near (and as the 2008 presidential campaign
approaches) the window to confirm Bush judges begins to close. At this
point in his tenure it is vital that Bush forward the names of good
nominees who can win the consent of the Senate. By now it is obvious
Haynes is not of that stock.
Indeed the administration has been derelict in sending a full slate of
nominees to the Senate. Of the 14 vacancies on the federal courts of
appeals, only eight have candidates up for Senate consideration — the list
includes Haynes and another 4th Circuit nominee with little hope of
confirmation. On the district court level, the president and Republican
senators who work cooperatively to fill these openings - have an equally
abysmal record. They have forwarded only 19 names for 32 vacancies.”
Indeed, the Bush Administration has continued to push Mr. Haynes’ nomination despite
bipartisan concern about Mr. Haynes’ role in developing and seeking to excuse this
Administration’s now discredited policies on the treatment of enemy combatants, the
interrogation and torture of detainees, and the creation of military commissions. In two
hearings, Mr. Haynes has refused to answer questions front Senators about these policies,
despite disturbing developments that have come to light that relate to those policies,
including the Abu Ghraib scandal and scores of other incidents of detainee abuse in
Afghanistan, Iraq, and Guantanamo Bay. In addition, new press reports, declassified
memoranda and letters from former high-ranking military officials have detailed Mr.
Haynes’ disregard for legal concerns raised by senior military and civilian lawyers within
the Armed Services about these policies and his efforts to subvert their advice. It seems
that Mr. Haynes ignored the policy concerns raised by military officers about the effect of
his policies on the safety of American troops and American credibility around the world.
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495
I have found inconsistencies between Mr. Haynes’ testimony and that of the uniformed
JAGs relating to their involvement in the development of detainee interrogation policies
to be particularly troubling. Although Mr. Haynes sought at his hearing in July to allay
some of these concerns regarding his disregard of the advice of uniformed JAGs, his
statements were contradicted by several JAGs wdio testified before the Senate Armed
Services Committee. Subsequently, Mr. Haynes sought to reconcile his testimony with
that of the JAGs in a letter to the Committee. Unfortunately, even this letter turned out to
be inaccurate, as set forth in a subsequent letter from Daniel DelFOrto, Mr. Haynes’
deputy at the Defense Department. The President had an opportunity to move beyond
this controversy by sending the Senate a more qualified, consensus nominee.
Unfortunately, he squandered that opportunity with this re-nomination.
The Richmond Times-Dispatch editorial could just as easily have been written about
Judge Terrence Boyle, whom the President also re-nominated to a seat on the Fourth
Circuit. He did so despite the fact that as a sitting United States District Judge and while
a Circuit Court nominee, Judge Boyle ruled on multiple cases involving corporations in
which he held investments. The President should have heeded the call of North Carolina
Police Benevolent Association, the North Carolina Troopers’ Association, the Police
Benevolent Associations from South Carolina and Virginia, the National Association of
Police Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as
well as the advice of our former colleague, Senator John Edwards, to withdraw this ill-
advised nomination and not re-nominated him. Law enforcement officers from North
Carolina and across the country oppose the nomination. Civil rights groups oppose the
nomination. Those knowledgeable and respectful of judicial ethics oppose this
nomination. This nomination had been pending on the floor calendar in the Republican-
controlled Senate since June of last year when it was forced out of the Committee on a
party-line vote. The Senate did the President a favor by returning this nomination to the
White House before the summer recess. The President should not have re-nominated
Judge Boyle.
The President also squandered an opportunity to fill Idaho’s vacancy on the Ninth Circuit
by re-nominating William Gerry Myers III for that seat. This is another Administration
insider and lobbyist whose record has raised serious questions about his ability to be a
fair and impartial judge. I opposed this nomination when it was considered by the
Judiciary Committee in March 2005. This was a nomination that the so-called “Gang of
14” expressly listed as someone for whom they made no commitment to vote for cloture,
and with good reason.
Mr. Myers’ record as Solicitor General for the Department of the Interior suggests that he
was part of a culture of corruption documented last week in the testimony of the Interior
Department’s Inspector General, Earl E. Devaney, at a hearing of the House Government
Reform Subcommittee on Energy. Mr Devaney testified about a “culture of managerial
irresponsibility and lack of accountability” at the upper levels of the Interior Department
in which, “[sjimply stated, short of a crime, anything goes at the highest levels of the
Department of the Interior.” He also testified, “I have observed one instance after
another when the good work of my office has been disregarded by the department. . . .
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496
Ethics failures on the part of senior department officials — taking the form of appearances
of impropriety, favoritism and bias — have been routinely dismissed with a promise ‘not
to do it again.’
While Mr. Myers’ anti-environmental record is reason enough to oppose his
confirmation, his connection to the “culture of managerial responsibility and lack of
accountability” raise further concerns. In particular, questions remain about his role in
authorizing a lawyer who worked for him, Bob Comer, to arrange a sweetheart settlement
agreement for a politically well-connected rancher, Frank Robbins. Mr. Comer was
found in an investigation by the Department of Interior’s Inspector General to have been
responsible for arranging the deal. Documents have come to light recently showing that
Mr. Myers had been given materials about the deal, undermining his assertions that he
was merely misled by Mr. Comer. If anyone sought to proceed to this nomination, we
would need to know more about these new documents and we would need to explore any
connections to the lobbying scandals associated with the Interior Department and
Republican lobbyist Jack Abramoff.
It is particular troubling to see Mr. Myers re-nominated because the President squandered
yet another opportunity to fill a vacancy. I had suggested that he re-nominate Norman
Randy Smith for the vacancy created by the retirement of Judge Thomas G. Nelson from
Idaho. Instead, the President has again nominated Judge Smith to a California seat on the
Ninth Circuit, effectively stealing California’s seat. That is wrong. I support Senators
Feinstein and Boxer in their opposition to this tactic. I again urge President Bush to
resolve this impasse and turn Idaho’s vacancy into a judge by withdrawing the
controversial Myers nomination and nominating Judge Smith for the Idaho vacancy to
which he could be easily confirmed.
Finally, the President has re-nominated Michael Wallace to a vacancy on the Fifth Circuit
even though he received the first ABA rating of unanimously “not qualified” that I have
seen for a Circuit Court nominee in 25 years. The hearing on his nomination scheduled
for July 19 was cancelled, though not before the Committee received written testimony
from the ABA regarding his rating. This testimony, which was confidential until leaked
to a conservative website, details the significant concerns raised by numerous jurists
around the country regarding Mr. Wallace’s judicial temperament, lack of commitment to
equal justice for the poor and minorities, lack of tolerance, and open-mindedness. It
details concerns from judges and lawyers that Mr. Wallace “may not follow the law” and
is driven by his “personal agenda.” Of course, the troubling issues raised in the ABA’s
testimony echo significant concerns about Mr. Wallace’s record on civil rights, his
opposition to the Voting Rights Act, his support for tax exemptions for Bob Jones
University, his opposition to prison safety regulations, and his attempt as President
Reagan’s director of the board of the Legal Services Corporation to undermine efforts to
provide legal services to low-income clients.
This is not the first time this Administration and this Republican-led Congress has
diverted resources and attention from America’s needs. A steady course of misguided
priorities including weeks spent on constitutional amendments to restrict Americans’
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497
rights and the misuse of Congress’s time and authority to interfere in a court battle over
the medical treatment of Terri Schiavo has cost Americans progress on real issues that
matter most.
With more Americans in poverty and extreme poverty and more children without health
care, we must do better. With rising interest rates, rising mortgage rates, rising health care
costs, rising insurance costs, we must do better for America’s working families. While
corporate profits are taking a greater and greater share of our GNP, wages are stagnant
and those in charge refuse to allow a long overdue raise to the minimum wage. We have
just come through a summer of record high gas prices, and for many families, the threat
of record high home heating prices this winter looms around the comer.
As we commemorated the first anniversary of Hurricane Katrina last month, we were
reminded that the situation in the Gulf Coast remains a tragedy with serious human
consequences. We need to commit ourselves and our resources to helping our fellow
citizens who are still in need after the appalling lack of responsiveness by this
Administration. We need to provide the assistance to that region of our country where
mbble remains a fixture of the landscape one year later. Many residents still do not have
homes to return to or jobs waiting for them when they get there.
As we commemorate the fifth anniversary of the deadliest foreign terrorist attack on
American soil last week, we should refocus our efforts and our resources there they
belong; on the real terrorists and providing real security. More than five years after 9/11,
Osama bin Laden remains at large, taunting us and threatening us— this despite the
bipartisan efforts by the Senate to authorize the President to use the most powerful
military force in the world to bring him to justice. Had the President not diverted our
forces from Afghanistan to Iraq, we would be much more successful in the war on
terrorism.
Americans would be better served if we used our remaining time in this Congress to
address these vital issues than to focus on fights over a handful of divisive and failed
nominations.
I look forward to hearing from the four nominees before the Committee today, and I hope
that I will be convinced that they are the kind of nominees who understand that the role
of the judge is to act as a check and balance to protect the rights and liberties of all
Americans. I welcome the nominees and their friends and families to the Committee
today.
#####
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498
Senator Trent Lott
Statement of Introduction for Leslie Southwick
Committee on the Judiciary
Judicial Nomination Hearing
Tuesday, September 19, 2006
Mr. Chairman, it is my pleasure to introduce Judge Leslie
Southwick to this committee. I am delighted that the President has seen
fit to nominate Judge Southwick to the United States District Court for
Southern Mississippi. In Mississippi, Judge Southwick’ s nomination has
received bipartisan support and praise. As well respected judge, his
professionalism, wisdom, and judgment make it clear that he is an
excellent choice to serve in the Federal Judiciary.
Judge Southwick is a cum laud e graduate of Rice University and
later graduated from the University of Texas School of Law. After
graduating from law school in 1975, Judge Southwick clerked for the
Presiding Judge of the Texas Court of Criminal Appeals before moving to
the State of Mississippi, where he has resided since.
In Mississippi, he served as a law clerk for Judge Charles Clark on
the Fifth Circuit Court of Appeals before joining the Jackson based firm
499
of Brunini, Grantham, Grower, & Hewes, where he became a partner in
the firm. He left private practice in 1 989 to serve for four years in the US
Department of Justice as Deputy Assistant Attorney General in the Civil
Division.
He has worked as an Adjunct Professor at the Mississippi College
School of Law, and in 1985, he was appointed to the Mississippi
Constitution Study Commission by the Governor.
He currently sits on the Mississippi Court of Appeals where he was
Presiding Judge from February of 1999 until 2004. Judge Southwick
wrote the most opinions in eight of the first ten years that he served on the
Court, and he was the winner of the Judicial Excellence Award from the
Mississippi State Bar in 2004.
In August of 2004, Judge Southwick began an 18 month, military
leave of absence from the Court of Appeals. In 1992, he had joined the
Judge Advocate General’s Coip in the US Army Reserves. Having later
transferred to the Mississippi National Guard, he served in 2005 as
Lieutenant Colonel and Staff Judge Advocate, 155 th Brigade Combat
Team, mobilized in support of Operation Iraqi Freedom.
500
Judge Southwick is a nationally recognized author. He has written
legal and historical articles which have been published nationally, and
was awarded the American Library Association’s award for "Best
Reference Work of the Year" in 1985 for his book entitled Presidential
Also-Rans and Running Mates .
Mr. Chairman, Judge Southwick’s nomination should come as no
surprise given his education, history of public service, reputation, and
temperament. I look forward to the committee’s swift approval of this
fine nominee, and to quick confirmation by the full Senate.
NOMINATION OF THOMAS MICHAEL
HARDIMAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT
TUESDAY, NOVEMBER 14, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:01 p.m., in room
226, Dirksen Senate Office Building, Hon. Arlen Specter (chairman
of the committee) presiding.
Also present: Senator Coburn, Santorum.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. It is
2, and we have made it a practice on the Judiciary Committee to
start our hearings precisely on time.
Our nominee today is Thomas Michael Hardiman, a U.S. district
Judge for the Western District of Pennsylvania, whose name has
been submitted by the President to be on the Court of Appeals for
the Third Circuit.
Mr. Hardiman comes to this position with an outstanding record,
a very young man, at 41, to have already been a Federal judge. He
is a graduate of Notre Dame in 1987, was a Notre Dame Scholar.
He went to Georgetown University Law Center in 1990, and was
associate editor and Note and Comment editor of the Georgetown
Law Journal, which is a mark of academic distinction in law school.
He was an associate at Skadden, Arps for 2 years. His leaving
that firm was a sign of real dedication to something other than
making money, because that is a firm which has long hours and
large compensation.
Then he was an associate at Titus & McConomy, a partner in
Reed Smith, and, since 2003, a judge on the U.S. district court for
the Western District of Pennsylvania.
Judge Hardiman has very, very extensive professional and com-
munity activities. He was a delegate to the American Bar Associa-
tion House of Delegates, a Fellow of the Academy of Trial Lawyers
of Allegheny County, a Hearing Officer for the Disciplinary Board
of the Pennsylvania Supreme Court, a member of the Federalist
Society. They are having their annual dinner on Thursday. He has
a very, very fine record.
Judge Hardiman, if you would step forward. We have been joined
by Senator Santorum, a distinguished Senator from Pennsylvania,
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502
who is completing is second term, was in the House of Representa-
tives for 4 years, and has a phenomenal record. He is a little older
than you, Judge Hardiman, but not much. Senator Santorum is 48.
You two young men have accomplished a great deal before the big
5-0.
Senator Santorum, it is a pleasure to have you before the Judici-
ary Committee.
Senator Santorum. Thank you, Mr. Chairman.
Chairman Specter. You are recognized.
PRESENTATION OF THOMAS MICHAEL HARDIMAN, NOMINEE
TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON.
RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Santorum. I got here just in the nick of time. I should
know better that you start your meetings on time. I apologize.
It is an honor to be here to appear again before my colleague,
Senator Specter, the great Chairman of this committee, and in par-
ticular to be here to introduce to the Committee someone who I
have known for many, many years, someone who I have tremen-
dous respect for, for his wife, for his family, his extended family.
It is a great family in western Pennsylvania. He has provided tre-
mendous service to the people of western Pennsylvania, as has his
family.
It is great to be here with them to testify here in this hearing
before the committee. Judge Hardiman is someone who I had the
pleasure of introducing when he was up for the district court.
I said at that time that he was a young man with tremendous
potential, and someone who had tremendous respect from the Bar
in western Pennsylvania, and that he would be an outstanding
judge in spite of his youth.
I took that as someone who got involved in loftier offices at a
young age that Judge Hardiman had a better temperament than
I did when I was at his age to prepare himself for this job, and in
fact, he has shown that. He truly has been an outstanding judge.
I can tell you that I get — as I know, Senator Specter, you do — com-
pliments for the people that we have nominated to the bench.
I cannot think of any judge that I have gotten more compliments
about, from not just litigants, but from fellow jurists, fellow judges,
than I have from Judge Hardiman. So I am ecstatic to be here
today to recommend him to the committee.
He is someone who has earned the respect of his peers, earned
the respect of the entire bar in western Pennsylvania, and I know
that, at least from the correspondence that we have received, he is
someone who is universally supported for this position. So it is an
honor for me to be here to put his name forward and to introduce
him.
I assume, Senator Specter, even though I am sorry I missed your
introduction, you usually go through all of the academic record, so
I will not go through that again.
But Tom and Lori are great citizens. Lori’s parents, who I know
are here, and the Zappala family, which is a great western Penn-
sylvania family, is here also. They represent, really, the best that
503
western Pennsylvania has to offer. So, it is a pleasure to be here
to recommend him to the committee.
Chairman Specter. Well, thank you very much, Senator
Santorum, for those words of support and for all you have done in
the nominating process. You and I have a Commission which
screens for the district court, and you and I have had a voice in
the submission of Judge Hardiman’s name to the President, and
the President has agreed with us on this occasion, which is a great
tribute to Judge Hardiman. Thank you very much.
While you are standing, Judge Hardiman, if you would raise your
right hand to take the oath before the committee.
[Whereupon, Judge Hardiman was duly sworn.]
Chairman Specter. You may be seated. Let us begin by having
you introduce your family formally for the record.
STATEMENT OF THOMAS MICHAEL HARDIMAN, NOMINEE TO
BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT
Judge Hardiman. Thank you, Senator Specter. With me today is
my wife, Lori, our children, Kate Josephine, Matthew Robert, Ann
Marissa Frances.
I am also privileged to have my parents, Robert and Judith
Hardiman, and also my in-laws, Richard and Nancy Zappala, and
my sister-in-law, Jordan, who is a resident of Washington.
In addition, friends from Bethesda, Maryland, Dr. Frank and
Carol Bergin, originally from my hometown of Waltham, Massachu-
setts, and my dear friend from Skadden, Arps, Alan Swirski and
his wife are with us today.
[The biographical information of Judge Hardiman follows:]
504
I, BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Thomas Michael Hardiman
2. Address: List current place of residence and office address(es).
Residence: Pittsburgh, Pennsylvania
Office address: 5260 U.S. Post Office & Courthouse
700 Grant Street
Pittsburgh, PA 15219
3. Date and place of birth.
July 8, 1965. Winchester, Massachusetts.
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer’s name and business address(es),
Married to Lori (Zappala) Hardiman. Lori is a lawyer who works as General Counsel to
the First City Company, Suite 212, Four Gateway Center, Pittsburgh, PA 15222.
5. Education : List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Georgetown University Law Center, 1987-1990, J.D. received on May 28, 1990.
University of Notre Dame, 1983-1987, B.A. received on May 17, 1987.
Universidad Iberoamericano, Mexico City, Mexico, January - May of 1985, no degree (I
participated in exchange program while enrolled at the University of Notre Dame)
6. Employment Record : List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
2003- Present, U.S. District Judge for the Western District of Pennsylvania
1999-2003 Reed Smith LLP; Partner
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505
1992-1999
1989-1992
1988-1989
1987
Titus & McConomy LLP (f7k/a Cindrieh & Titus); Partner (1996-1999),
Associate (1992-1996)
Skadden, Arps, Slate, Meagher & Flom LLP; Associate (1990-1992),
Summer Associate/Law Clerk (1989-1990)
Pettit & Martin; Summer Associate/Law Clerk
Waltham Central Square Taxi; Taxi Driver/Dispatcher
I have held the following unpaid volunteer positions:
Hearing Officer, Disciplinary Board of the Pennsylvania Supreme Court, 1995-1999
Alternate Hearing Officer, Disciplinary Board of the Pennsylvania Supreme Court. 1999-
2003
Co-Chairman, Transition Team of Allegheny County Executive James C. Roddey, 1999-
2000
President, Big Brothers Big Sisters of Greater Pittsburgh, Inc., 1999-2000
Director, Big Brothers Big Sisters of Greater Pittsburgh, Inc., 1 995-Present
Treasurer, Republican Committee of Allegheny County, 2000-2003
Trustee, Richard A. Zappala Family Foundation, 2000-Present
Member, St. Edmund’s Academy, Trustee Committee, 2005-Present
7. Military Service : Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
None.
8. Honors and Awards : List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Fellow, Academy of Trial Lawyers of Allegheny County
“AV” Rating from Martindale-Hubbell
Delegate, American Bar Association House of Delegates
Georgetown Law Journal - Associate Editor, Notes & Comments Editor
Notre Dame Scholar
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506
9. Bar Associations : List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
United States District Court for the Western District of Pennsylvania
Co-Chair, Information Technology Committee, 2004-Present
Co-Chair, Alternative Dispute Resolution Committee, 2005-Present
Governor’s Judicial Advisory Commission, 5 ,h Judicial District; Member, 2000-2003
American Bar Association, Delegate, 1996-1998
Pennsylvania Bar Association, Member Professionalism Committee, 1999-2003
Allegheny County Bar Association, Member (1992-2003), Bx-Officio (2003-Present)
10. Other Memberships : List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
To the best of my knowledge, the Federal Judges Association is the only organization
that engages in lobbying activities.
I am a member of;
American Inns of Court, University of Pittsburgh Chapter
American Judicature Society
Big Brothers Big Sisters of Greater Pittsburgh, Inc.
Duquesne Club
Federal Judges Association
Federalist Society
Longue Vue Club
The Law Club of Pittsburgh
11. Court Admission : List ail courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
Pennsylvania Supreme Court, November 19, 1992
District of Columbia Court of Appeals, May 29, 1 99 1
Massachusetts Supreme Judicial Court, December 20, 1990
Supreme Court of the United States, August 4, 2000
U.S. Court of Appeals for the Third Circuit, December 9, 1 996
U.S. District Court for the Western District of Pennsylvania, September 15, 1992
U.S. Tax Court, November 18, 1994
There have been no lapses of membership with the exception of the District of Columbia,
where I have elected inactive status. In Massachusetts I am in "Judicial" status.
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507
12. Published Writings : List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
Jeffrey A. Jacobs, Reform of the National Guard: A Proposal to Strengthen the National
Defense . 78 Geo. LJ. 625 (1990) (I edited this law review note).
Competency to Stand Trial, The Eighteenth Annual Review of Criminal Procedure:
United States Supreme Court and Courts of Appeals 1987-1988 . 77 Geo. L.J. 489
(1989) (I authored portions and edited this section of this annual survey of
criminal procedure).
Remarks for the Installation of the Honorable Mary Jane Bowes, January 2, 2002 (I wrote
and delivered this speech).
Remarks to the Academy of Trial Lawyers of Allegheny County and Gourley Cup Mock
Trial participants on February 17, 2005. (I wrote and delivered this speech).
13. Health : What is the present state of your health? List the date of your last physical
examination.
I am in excellent health. My last physical examination was on August 22, 2006.
14. Judicial Office : State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
On October 27, 2003 I was appointed by President George W. Bush to be a United States
District Judge for the Western District of Pennsylvania.
15. Citations : If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions.
(1) Citations to the ten most significant opinions 1 have written:
1. Vi ad Corp. v. Cordial , 299 F. Supp.2d 466 (W.D, Pa. 2003).
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508
2. Lexington Ins, Co. v. W. Pa. Hosp., 318 F. Supp,2d 270 (W.D. Pa. 2004).
3 . Patsakis v. Greek Orthodox Archdiocese of America, 339 F. Supp.2d 689
(W.D. Pa. 2004), 428 F. Supp.2d 378 (W.D. Pa. 2006).
4. United States v. Shackelford , No. 04-192 (W.D. Pa. June 3, 2005)
(Memorandum Opinion granting Defendant’s Motion to Suppress).
5. Pinson v. Berkley Medical Res., Inc., No. 03-1255, 2005 U.S. Dist. LEXIS
13045 (W.D. Pa. June 21, 2005).
6. Arhay LLC v. Duquesne Light Holdings, Inc., No. 03-1473 (W.D. Pa. Oct.
25, 2005) (Opinion following bench trial).
7. Lewis v. Sheridan Broadcasting Networks, Inc., No. 04-1015, 2005 U.S.
Dist. LEXIS 26762, 2005 WL 2977799 (W.D. Pa. Nov. 7, 2005).
8. Bhattv. Brownsville Gen. Hasp., No. 03-1578, 2006 WL 167955 (W.D.
Pa. Jan. 20, 2006).
9. Dycoal, Inc. v. Northwestern Synfuels, LLC, No.05-679, 2006 U.S. Dist.
LEXIS 25078, 2006 WL 360642 (W.D. Pa. Feb. 15, 2006).
10. Yang v. Tsui , F. Supp.2d , 2006 WL 2466095 (W.D. Pa. 2006).
(2) A short summary of and citations for ail appellate opinions where your
decisions were reversed or where your judgment was affirmed with significant
criticism of your substantive or procedural rulings:
1 . Wagner v. Bank of New York, 95 Fed.Appx. 463 (Table) (Apr. 28, 2004,
3d Cir.) (not precedential): The Court of Appeals (Per Curiam) vacated an order
and remanded the case in which 1 found that the court lacked jurisdiction to hear a
bankruptcy appeal. Appellant failed to file a notice of appeal from the bankruptcy
court's final order entered on August 22, 2003. Because he had appealed a prior
order on August 6, 2003, however, the Court of Appeals held that this premature
notice of appeal became effective upon entry of the Bankruptcy Court's
subsequent final order.
2. Altman v. Commissioner, 124 Fed.Appx. 748, 2005 WL 555305 (3d Cir.
2005) (not precedential): The Court of Appeals (Shapiro, J,, sitting by
designation) reversed and remanded an order I entered affirming a decision of an
Administrative Law Judge of the Social Security Administration. The Court of
Appeals held that the ALJ erred by not considering a physician-approved report
5
509
that the claimant was limited to part-time sedentary work. Accordingly, the case
was remanded to the ALJ to give due consideration to the report.
3. Dubrosky v. Colonial Life & Accident Ins. Co., 129 Fed.Appx. 691, 2005
WL 900233 (3d Cir. 2005) (not precedential): The Court of Appeals reversed a
grant of summary judgment in a contract action for unpaid commissions. When
this case was assigned to me, the only outstanding issue was the amount of
damages, as Judge Cindrich had already decided the merits of the case. After
advising the parties that I did not believe it appropriate for me to second-guess
Judge Cindrich's decision, the parties stipulated to the amount of damages and I
entered an order so an appeal from Judge Cindrich’s decision could be taken.
4. Yang v. Tsui, 416 F.3d 199 (3d Cir. 2005) (precedential): This
international custody dispute presented an issue of first impression for the Court
of Appeals for the Third Circuit: "whether a District Court should abstain from a
Hague Convention Petition when a state court custody proceeding is pending . . .
." In light of the pendency of state court proceedings in British Columbia and in
Pennsylvania, I abstained from adjudicating the matter under Younger v. Harris,
401 U.S. 37 (1971) and its progeny. The Court of Appeals reversed, holding that
abstention was not appropriate because petitioner did not raise her Hague
Convention claim in state court, her petition and the custody determinations are
distinct issues, and the Hague Convention and its implementing statute, 42 U.S.C.
§11601 et seq., require a federal court to hear a Hague Convention petition on the
circumstances of this case. Yang, 416 F.3d at 205.
5. Porter v. Cancelmi, 1 12 Fed.Appx. 867 (Table) (3d Cir. Aug. 11, 2005)
(not precedential): In this prisoner case, Magistrate Judge Lisa Pupo Lenihan
issued a Report and Recommendation that plaintiffs petition to proceed in forma
pauperis should be denied because he had “three strikes” pursuant to 28 U.S.C.
§ 1915(g). The Court of Appeals vacated and remanded the case, which remains
pending before Magistrate Judge Lenihan.
6. Johnson v. Blaine, 144 Fed.Appx. 960, 2005 WL 2475082 (3d Cir. 2005)
(not precedential): In this case, a prisoner brought a claim for assault. Magistrate
Judge Robert Mitchell issued a Report and Recommendation suggesting dismissal
on statute of limitations grounds that I adopted. On appeal, the state conceded
that plaintiffs complaint was timely because the statute of limitations was tolled
while plaintiff pursued his administrative remedies. Accordingly, the case was
remanded and remains pending before Magistrate Judge Mitchell.
7. Carston v. Sacks, 157 Fed.Appx. 504, 2005 WL 3244276 (3d Cir. Dec. 2,
2005) (not precedential): In this case a prisoner appealed from a grant of
summary judgment that I entered after adopting a Report and Recommendation
issued by Magistrate Judge Amy Reynolds Hay. The Court of Appeals held that
an issue of material fact existed as to whether plaintiff complied with prisoner
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510
grievance procedures and properly exhausted his claims. The case remains
pending before Magistrate Judge Hay.
8. Clegg v. Falcon Plastics, 174 Fed.Appx. 18, 2006 WL 887937 (3d Cir.
Apr. 6, 2006) (not precedential): In this case, plaintiff brought several federal and
state law claims against her former employer and two former co-workers. I
granted summary judgment for defendants and plaintiff appealed. The Court of
Appeals affirmed my rulings on the Title VII retaliation claim, the Pennsylvania
Equal Rights Amendment claim and two counts of intrusion upon seclusion. The
Court of Appeals reversed on plaintiffs Title VII hostile work environment claim
(and the concomitant Pennsylvania Human Relations Act claim), stating:
“Although we believe it is a close question, [plaintiff] has presented sufficient
evidence to establish a genuine issue of material fact as to whether . . . [plaintiff]
was exposed to a hostile work environment.” Id. at *8.
(3) Citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions
1. Underwood v. Beaver County Children & Youth Serv., No. 03-1475 (W.D.
Pa. January 21, 2004) (Memorandum Opinion denying Motion to
Dismiss).
2. Pachis v. Greek Orthodox Archdiocese of America,, No. 03-1 896 (W.D.
Pa. April 23, 2004) (Memorandum Opinion granting Defendants’ Motion
to Dismiss).
3. United States v. Staten, 03-295 (W.D. Pa. May 18, 2004)
(Memorandum Opinion denying Defendant’s Motion to Suppress).
2006 WL 1518840 (3d Cir. June 2, 2006)
4. United States v. Banks, No. 03-245 (W.D. Pa. July 1, 2004)
(Memorandum Opinion denying Defendant’s Motion to Suppress).
U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006)
5. Shigle v. Mount Pleasant Borough, No. 03-1433 (W.D. Pa. July 6, 2004)
(Memorandum Opinion denying Motion to Dismiss Amended Complaint).
6. United States v. Jenkins, No. 03-283 (W.D. Pa. July 8, 2004)
(Memorandum Opinion denying Defendant’s Motion to Suppress),
2006 WL 1489031 (3d Cir. May 31, 2006)
7. Shigle v. Mount Pleasant Borough, No. 03-1433 (W.D. Pa. August 11,
2004) (Memorandum Opinion granting in part and denying in part
Defendant Munk's Motion for Summary Judgment).
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511
8. Patsakis v. Greek Orthodox Archdiocese of America, 339 F. Supp.2d 689
(W.D. Pa. 2004).
9. United States v. Brown, No. 04-55 (W.D. Pa. November 8, 2004)
(Memorandum Opinion denying Defendant’s Motion to Suppress).
10. United States v. Smith, No. 04-74 (W.D. Pa. November 12, 2004)
(Memorandum Opinion denying Defendant’s Motion to Suppress).
11. United States v. Cole, No. 04-109 (W.D. Pa. Jan. 19, 2005) (Memorandum
Opinion denying Defendant’s Motion to Suppress).
12. United States v. Bailey, No. 04-24 (W.D. Pa. February 14, 2005)
(Memorandum Opinion denying Defendant’s Motion to Suppress).
13. United States v. Shackelford, No. 04-192 (W.D. Pa. June 3, 2005)
(Memorandum Opinion granting Defendant’s Motion to Suppress).
14. Parente v. City of Pittsburgh, No. 03-938 (W.D. Pa. August 5, 2005)
(Memorandum Opinion granting in part and denying in part Defendants’
Motions for Summary Judgment).
15. United States v. Holyfield, No. 04-035, 2005 U.S. Dist. LEXIS 25078,
2005 WL 2106624 (W.D. Pa. Aug. 26, 2005).
16. Shigle v. Mount Pleasant Borough, No. 03-1433, 2005 U.S. Dist. LEXIS
28131, 2005 WL 3070944 (W.D. Pa. November 11, 2005).
17. United States v. Yamba, 407 F. Supp.2d 703 (W.D. Pa. 2006).
18. Patsakis v. Greek Orthodox Archdiocese of America, 428 F. Supp.2d 378
(W.D. Pa. 2006).
19. Hoffman v. Borough of Avalon, No. 04-1825 (W.D. Pa. August 22, 2006)
(Opinion granting Defendant’s Motion to Dismiss).
20. United States v, Tilley, No. 05-267 (W.D. Pa. August 30, 2006)
(Memorandum Opinion denying Defendant's Motion to Suppress)
21 . United States v. Gniewek, No. 06-88 (W.D. Pa. September 20, 2006)
(Memorandum Opinion denying Defendant's Motion to Suppress)
22. United States v. Yamba, No. 04-329 (W.D. Pa. January 6, 2006) (Opinion
denying Defendant's Motion to Suppress)
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512
16. Public Office : State (chronologically) any public offices you have held, other
than judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
1995-1999; Hearing Officer, Disciplinary Board of the Pennsylvania Supreme Court;
appointed By the Disciplinary Board
1999-2003; Alternate Hearing Officer, Disciplinary Board of the Pennsylvania Supreme
Court; appointed by the Disciplinary Board
1999- 2000; Co-Chairman, Transition Term of Allegheny County Executive James C.
Roddey; appointed by County Executive Roddey
2000- 2003; Member, Governor’s Judicial Advisory Commission, 5 th Judicial District;
appointed by Governors Tom Ridge and Mark Schweiker.
2000-2001; Committeeman, Republican Committee of Allegheny County, 14 th Ward, 5 th
District, City of Pittsburgh; elected
2000-2003; Treasurer, Republican Committee of AlleghenyCounty; elected
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone, and if so, the addresses
and dates;
I never practiced alone.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you
have been connected, and the nature of your connection
with each;
Reed Smith LLP; 435 Sixth Avenue; Pittsburgh, PA 15219;
Partner, 1999-2003
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Titus & McConomy LLP (f/k/a Cindrich & Titus)
Four Gateway Center, 20 th Floor; Pittsburgh, PA 15222
Partner, 1996-1999; Associate, 1992-1996
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW; Washington, D.C. 20005
Associate, 1990-1992
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
My entire legal career was devoted to litigation work, both civil and
criminal. The character of my practice can fairly be divided into three
periods, which are discussed below.
After graduating from law school, I joined the Washington, D.C. office of
Skadden, Arps, Slate, Meagher, & Flom as an Associate in the Litigation
Group. For two years I worked on a variety of litigation matters related to
contracts, securities, white-collar crime, bankruptcy, and energy. Like
most young associates at large law firms, I spent most of my time
researching and writing, preparing discovery requests and working on
document productions
In 1992, 1 joined the Litigation Group of Cindrich & Titus, where I hoped
to obtain more in-court litigation experience than a large firm could
provide. My first two years at the firm were spent working researching
and writing quite a bit, but I also took numerous depositions and acted as
second chair. I began to find and cultivate new clients and obtained
substantial experience as lead counsel on numerous cases involving real
estate, injunctions, civil rights, securities, constitutional law, taxation and
non-competition agreements.
After I was elected Partner at Titus & McConomy in 1996, 1 was engaged
in an active civil and criminal litigation practice in federal and state courts.
The subject matter of the cases I handled did not change much since I first
began practicing law in Pittsburgh. The principal change during these
seven years was that I became lead or sole counsel on matters instead of
serving as second or third chair. Thus, I spent substantial time managing
my caseload and the work of several talented associates who worked with
me at Titus & McConomy and Reed Smith.
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514
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
I represented individuals, corporations, partnerships and unincorporated
associations. My practice encompassed a broad range of both civil and
criminal matters, although I gained specialized knowledge in real estate
litigation.
e. 1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
I appeared in court frequently. I estimate that I averaged between
one and two court appearances per week during my legal career in
Pittsburgh.
2. What percentage of these appearances was in:
(a)
federal courts:
25%
(b)
state courts of record:
70%
(c)
other courts:
, 5%
3. What percentage of your litigation was:
(a) civil: 95%
(b) criminal. 5%
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
I have tried to verdict or judgment at least nineteen cases, including three
cases as sole counsel, twelve cases as chief counsel, and four cases as
associate counsel.
5. What percentage of these trials was:
(a) jury: 25%
(b) non-jury: 75%
18. Litigation : Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
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515
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
William L. Dailey, et al. v John DeFazio, et at.
Civil Action No. 01-1911 (W.D. Pa. 2001)
U. S. District Court for the Western District of Pennsylvania
Hon. Robert J. Cindrich
In this matter I served as lead counsel to several individuals and the Republican
Committee of Allegheny County in their challenge to the legality of redistricting
plans adopted by Allegheny County Council after the 2000 Census. We alleged
that the redistricting plan adopted by County Council violated both the United
States Constitution and the Allegheny County Administrative Code. The District
Court agreed that the redistricting plan violated the Administrative Code and held
the plan invalid. After County Council passed a second plan, we filed another
case in federal court, which was rendered moot because County Council passed a
third redistricting plan shortly before trial was scheduled on the second plan. A
trial on the legality of this third plan was held on December 16, 2002. The district
court ruled against my clients, finding that the third redistricting plan adopted by
County Council did not violate federal or state law. The case involved a matter of
public interest because the voting rights of over 1 18,000 persons were at stake and
the redistricting was adopted pursuant to a new “home rule” government.
Co-Counsel:
Robert M. Owsiany, Esquire
The Law Office of Lois E. Glanby, Esquire
535 Smithfield Street, Suite 1025
Pittsburgh, PA 15222
(412) 471-6110
Associate Counsel:
Brian T. Himmel, Esquire
435 Sixth Avenue
Pittsburgh, PA 15219
(412 288-4058
Opposing Counsel:
John F. Cambest, Esquire
Dodaro, Kennedy & Cambest
1001 Ardmore Boulevard
Pittsburgh, PA 15221
(412)243-1600
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The Honorable Terrence MeVerry
U. S. Post Office and Courthouse
Pittsburgh, PA 15219
(412) 208-7495
Edward Still, Esquire
Edward Still Law Firm
Title Building, Suite 710
300 Richard Arrington Boulevard, North
Birmingham, AL 35203-3352
(204) 322-1100
David Armstrong, Esquire
Dickie McCamey & Chilcote P.C.
Suite 400
Two PPG Place
Pittsburgh, PA 15222
(412)392-5227
2. Andy Modrovich, et al. v. Allegheny County Pennsylvania
Civil Action No. 01-0531 (W.D. Pa. 2001), 385 F.3d 397 (3d Cir. 2004)
U.S. District Court for the Western District of Pennsylvania
Hon. Donetta W. Ambrose
I worked pro bono with a team of Reed Smith lawyers who were defending
Allegheny County in an equity action brought by two atheists who sought to force
the removal of The Ten Commandments plaque from the side of the Allegheny
County Courthouse. The Commandments Plaque, erected in 1917, has substantial
historical value as it was intended to honor those who perished in World War I
and to endorse the rule of law over the whims of the powerful. This case was of
great interest to numerous residents of Allegheny County, as indicated by the
hundreds of letters and telephone calls that the County Executive received relative
to the matter. Chief Judge Donetta Ambrose ruled in favor of our clients and the
Court of Appeals for the Third Circuit affirmed her decision.
Co-Counsel
Ralph A. Finizio, Esquire
Houston Harbaugh, P.C.
Two Chatham Center
12 th Floor
Pittsburgh, PA 15219
(412)288-2223
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Lead Counsel:
Perry A. Napolitano, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-7230
Opposing Counsel:
Alex J. Luchenitser, Esquire
Americans United For Separation of Church & State
518 C Street, NE
Washington, DC 20002
(202) 466-3234
3. Beverly Powell v, Housing Authority of the City of Pittsburgh
812 A.2d 1201 (Pa. 2002)
Court of Common Pleas of Allegheny County, Hon. R. Stanton Wettick
Pennsylvania Commonwealth Court
Pennsylvania Supreme Court
In this case I was lead counsel to the Housing Authority of the City of Pittsburgh
both at trial and on appeal to the Supreme Court of Pennsylvania. The case
involved the constitutionality of regulations promulgated by the U. S. Department
of Housing and Urban Development that permitted housing authorities to
terminate Section 8 benefits to those whose family members engage in violent
criminal activity. The trial court held the regulations unconstitutional, ruling
against my client. The Pennsylvania Supreme Court reversed.
Associate Counsel:
Dianna Calaboyias Wyrick, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-4058
Opposing Counsel:
Richard S. Matesic, Esquire
Neighborhood Legal Services Association
928 Penn Avenue
Pittsburgh, PA 15222-3799
(412) 255-6700
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Martha S. Helmreich, Esquire
Witold Walczak, Esquire
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
(412) 456-2000
Evalynn Welling, Esquire
Community Justice Project
1705 Allegheny Building
Pittsburgh, PA 15219
(412) 391-5225
4. Robert Smith, et al. v. Michael F. Coyne, et al.
555 Pa. 21, 722 A.2d 1022 (Pa. 1999)
Court of Common Pleas of Allegheny County, Hon. R. Stanton Wettick, Jr.
Pennsylvania Supreme Court
This case began as a simple residential landlord-tenant case and expanded into a
vigorous dispute among several parties, including individuals, corporations,
public agencies, and non-profit organizations. At issue was the constitutionality
of Rule 1008(B) of the Rules of District Justice Procedure, which governed a
tenant’s ability to remain in possession of property during the pendency of an
appeal.
I represented Landlord Service Bureau, Inc., a consortium of “mom and pop”
landlords interested in upholding the constitutionality of Rule 1008(B) because it
required an appealing tenant to pay rent due into court in order to remain in
possession during the appeal. The Housing Authority of the City of Pittsburgh, a
real estate company called Pittsburgh Factors, and the American Congress of Real
Estate had the same interest as my client and I cooperated with counsel for those
entities in preparation of the case. Neighborhood Legal Sendees and the
Community Justice Project represented several tenants who sought to invalidate
Rule 1008(B).
In a scholarly opinion exceeding 40 pages, Judge Wettick ruled against my client
and the other groups representing the landlord position. Judge Wettick held that
Rule 1008(B) violated Article I, Section 6 of the Pennsylvania Constitution which
guarantees the right to trial by jury. Judge Wettick rejected all of the other claims
made by the tenants, including alleged violations of due process and equal
protection of the law under the federal and state constitutions.
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519
We appealed the case directly to the Pennsylvania Supreme Court and I was
chosen to argue the landlord’ s position. The Supreme Court of Pennsylvania
reversed Judge Wettick’s decision unanimously.
Co-Counsel:
Bradley S. Domish, Esquire
Domish & Scolieri, P.C.
Allegheny Building
Suite 1 100
Pittsburgh, PA 15219
(412) 765-2726
Vincent Scaglione, Jr., Esquire
Dickie, McCamey & Chilcote, P. C.
Two PPG Place
Suite 400
Pittsburgh, PA 15222
(412) 392-5339
Associate Counsel:
Dianna Calaboyias Wyrick, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-7238
Opposing Counsel:
Paul W. O’Hanlon, Esquire
Richard Matesic, Esquire
Neighborhood Legal Sendees Association
928 Penn Avenue
Pittsburgh, PA 15222
(412)255-6700
5. Borough of Edgewood, et al. v. Henry Cisneros, et al.
129 F.3d 1254 (3dCir. 1997)
U.S. District Court for the Western District of Pennsylvania
Hon. Gustave Diamond
U.S. Court of Appeals for the Third Circuit
This high-profile case involved the purchase of single family homes - at prices
above the median home price in Allegheny County - for use as public housing. I
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520
was retained by two African-American residents of Edgewood and its Borough
Council to challenge the legality of the purchases, which were made pursuant to a
federal court order known as the Sanders Consent Decree. Soon after the
Allegheny County Housing Authority announced that it was going to purchase
eight homes in Edgewood, we filed a Motion for a Preliminary Injunction and a
Complaint in Equity. The U.S. District Court for the Western District of
Pennsylvania denied the Motion and dismissed the Complaint. We filed an
appeal with the U.S. Court of Appeals for the Third Circuit, which upheld the
District Court.
Associate Counsel:
Joseph P. McHugh, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-7236
Opposing Counsel:
Henry Azar, Esquire
901 E Street, NW
Washington, D.C. 20004
(202) 616-8475
John W. Joyce, Esquire
Allegheny County Housing Authority
341 Fourth Avenue
Fidelity Building
Pittsburgh, PA 15222
(412)355-2157
Donald Driscoll, Esquire
Community Justice Project
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 434-6012
6. Ronald Alexander, et at v. Joseph Riga, et al.
208 F.3d 419 (3d Cir. 2000), cert, denied, 531 U.S. 1069 (2001)
U.S. District Court for the Western District of Pennsylvania
Hon. William L. Standish
U.S. Court of Appeals for the Third Circuit
In this case I was retained to defend a husband and wife, both first-generation
Italian immigrants, who were accused of violating the Fair Housing Act of 1968
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521
and the Civil Rights Act of 1866. After a hard-fought two week trial, the jury
returned a verdict in favor of my clients. The U.S. Court of Appeals for the Third
Circuit reversed and remanded the case for a trial on the issues of punitive
damages and attorneys’ fees, despite the fact that the plaintiffs were awarded no
compensatory damages. We filed a Petition for Writ of Certiorari with the U.S.
Supreme Court, which was denied. This case involved several cutting-edge legal
issues, including standing to sue, liability without damages, and causation.
Associate Counsel:
Joseph P. McHugh, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-7236
Opposing Counsel:
Caroline Mitchell, Esquire
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412)232-3131
Timothy P. O’Brien, Esquire
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-4400
7. Ravin, Inc. v. First City Company
692 A.2d 577 (Pa. Super. 1997)
Court of Common Pleas of Allegheny County, Pennsylvania
Hon. James H. McLean
Pennsylvania Superior Court
This case was a construction dispute in which I defended a real estate
management company and a related real estate partnership that developed and
owned an upscale mall in Mt. Lebanon, Pennsylvania. The plaintiff construction
company filed a ten count complaint against my clients, including claims for
breach of oral and written contract and quasi-contract claims. Prior to trial the
plaintiff withdrew four of its causes of action. After the plaintiff put its case on,
the Court dismissed five of the six remaining claims by granting my Motion for
Compulsory Nonsuit. We received a Directed Verdict on the tenth and final count
before the case was submitted to the jury.
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522
The plaintiff appealed the case to Superior Court, which affirmed the verdict in
favor of my client. Superior Court set a noteworthy precedent regarding the
exclusion of expert testimony when an expert attempts to opine regarding the
value of leasehold improvements without ever having inspected the property at
issue.
Co-Counsel: None
Opposing Counsel:
Anthony W. Hinkle, Esquire
Cipriani & Werner, P.C.
Two Chatham Center
Suite 1100
Pittsburgh, PA 15219
(412) 281-2500
8. Hubert Hudson v. Frank Coppola, et al.
No. 00-3369 (3d Cir. 2000)
U.S. District Court for the Western District of Pennsylvania
Hon. Gary L. Lancaster
U.S. Court of Appeals for the Third Circuit
In this case I defended the Housing Authority of the City of Pittsburgh and two of
its police officers in a civil rights case brought by a man who was apprehended
for drunk and disorderly conduct at one of the Housing Authority’s communities.
This jury trial was a unique challenge because the plaintiff represented himself at
trial. Consequently, the trial took some odd twists and turns that required me to
think quickly and respond to some very unorthodox tactics. The judge directed a
verdict in my clients’ favor on most of plaintiffs claims, but a claim for excessive
use of force went to the jury. The jury returned a verdict in our favor after only
fifteen minutes.
9. Paul Mutschler v. Paul Meggitt Kay, et al.
No. GD94-19312
Court of Common Pleas of Allegheny County, PA
Hon. R. Stanton Wettick
Paul Mutschler v. Lorasen Holdings, Inc., et al.
Civil Action No. 7295 of 2001
Court of Common Pleas of Westmoreland County, PA
Hon. Gary Caruso
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We represented an individual in an executive severance and partnership dispute
with his former partners and several of their closely held corporations. The case
involved complicated corporate, partnership, and post-judgment issues and was
further complicated by the offshore status of the defendants and several of their
companies. We obtained a verdict and judgment for $450,000. After the
defendants failed to pay the judgment, we pursued a garnishment action against
an affiliate and received a judgment against that corporation worth over $500,000.
The second judgment debtor owned valuable real estate in Western Pennsylvania
which was transferred for $10 to another corporate affiliate. Ultimately, after I
assumed judicial duties, the case was settled. Although this case was not
significant to the public, it was important on a personal level because my
colleague and I pursued justice for the client many years after his ability to pay
legal fees had been exhausted.
Co-Counsel:
Brian T. Himmel, Esquire
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412)288-4058
Opposing Counsel:
Thomas E. Birsic, Esquire
Kirkpatrick & Lockhart LLP
535 Smithfield Street
Pittsburgh, PA 15222
(412) 355-6538
10. In re: Ernesto Orellana-Hercules
No. A27-628-430
Immigration Judge Richard Nejelski
In this pro bono matter, I represented a young man who emigrated from El
Salvador. I filed an application for asylum and the case was litigated before an
administrative law judge of the Immigration and Naturalization Service. The
issue was whether Mr. Orellana possessed a well-founded fear of persecution
based on his membership in a social group ( i.e ., as a resident of Teosinte in
Chalatenango Province, El Salvador). The case was challenging because although
Mr. Orellana had been persecuted, the reasons for the persecution did not fit
neatly into one of the categories required to be proven to entitle one to receive
asylum. I was very gratified with Judge Nejelski’s decision to grant asylum to
Mr. Orellana because he was truly afraid to return to El Salvador.
Co-Counsel: None
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Opposing Counsel:
INS District Counsel
4420 North Fairfax Drive
Room 500
Arlington, VA 22203
19. Legal Activities : Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
In 1995, the Disciplinary Board of the Pennsylvania Supreme Court appointed me a
Hearing Officer. When my term ended in 1999, 1 was appointed an Alternate Hearing
Officer. In my capacity as a Hearing Officer and Alternate Hearing Officer, I sat on
three-lawyer panels that adjudicated cases brought by the Disciplinary Board against
lawyers who were accused of violating the Rules of Professional Conduct. This unpaid,
quasi-judicial position was a rewarding professional experience and influenced my
decision to seek judicial office.
In addition to my work as a Hearing Officer, I served an a arbitrator for the National
Association of Securities Dealers in cases involving securities brokers and dealers who
were accused of violating the common law and/or federal and state securities laws. Like
my work for the Disciplinary Board, these cases were heard by three-person panels.
Unlike the Disciplinary Board cases, however, I typically was the only attorney on these
panels. Accordingly, I usually was asked to serve as Chairman of the panels to ensure
that the arbitration hearings were conducted in an impartial, professional, and expeditious
manner. There was a small stipend for this work, but it was essentially pro bono.
Other significant legal activities I pursued apart from trying cases included my work on
the Governor’s Judicial Advisory Commission for the Fifth Judicial District. This
Commission met for several days to interview, consider, and report on aspiring judges for
vacancies on the Court of Common Pleas of Allegheny County. It was an honor and a
pleasure to serve, without compensation, in an effort to recommend judicial candidates to
the Governor. Soon after his election in 2002, Governor Rendell appointed three first-
rate lawyers, all of whom were recommended by our Commission, to the Court of
Common Pleas of Allegheny County.
During my tenure on the U.S. District Court for the Western District of Pennsylvania I
have been active in the American Inns of Court and numerous bar-related functions for
the Academy of Trial Lawyers of Allegheny County, the Allegheny County Bar
Association, the Federal Bar Association, and the Pennsylvania Bar Institute.
21
525
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for any
financial or business interest.
None.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which you
have been nominated.
I will resolve any potential conflict of interest by following 28 U.S.C. §455 and Canon
3(C) of the Code of Conduct for United States Judges, which govern judicial recusal.
Both the Clerk of Courts and my chambers maintain a recusal list that includes entities in
which I have a financial interest or other conflict. This recusal list is updated regularly.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See attached Net Worth Statement.
22
526
S. Have you ever held a position or played a roie in a political campaign? Jf so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
Yes, I served as Finance Chairman for Bowes for Superior Court. Mary Jane Bowes ran
for Pennsylvania Superior Court and was elected on November 8, 2001. My principal
responsibility was to raise money for the campaign and I served for about one year. Until
my nomination for District Court Judge, I served as Co-Chair for Roddey 2003, the re-
election campaign for County Executive James C. Roddey.
23
527
AO-IO(WP)
Rev. 1/2004
FINANCIAL DISCLOSURE REPORT
Nomination Report
!. Person Reporting (Last name, first, middle initial)
: Hardiman, Thomas M.
, 4. Title (Article III judges indicate active or senior status;
• magistrate judges indicate full - or part-time)
'■ U.S. Circuit Judge - Nominee
7. Chambers or Office Address
5260 U.S. Post Office & Courthouse
700 Grant Street
.Pittsburgh, Pa. 15219
IMPORTANT NOTES: The
2. Court or Organization
Third Circuit
5. Report Type (check appropriate type)
X Nomination. Date: 9/13/06
Initial Annual Final
On the basis of the information contained in this Report and
any modifications pertaining thereto, it is, in my opinion,
in compliance with applicable laws and regulations.
Report Required by the Ethics
in Government Act of ! 97 8.
(SU.S.C.App. B'KH-Ul)
3. Date of Report
September 14, 2006
6. Reporting Period
01/01/05 to 8/31/06
al! parts,
bn last page.
I. POSITIONS. (Reporting individual only: xee pp. 9- IS of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (No reportable positions.)
Big Brothers Big Sisleis of Greater Pittsburgh, Inc.
II. AGREEMENTS. (Reporting individual only; see pp. 14-16 of Instructions.)
DATE PARTIES AND TERMS
X NONE (No reportable agreements.)
III. NON-IN VESTMENT INCOME. (Reporting individual and spouse; see pp. 17-24 of Instructions.)
PATE SOURCE AND TYPE GROSS INCOME
A. Filer’s Non-Investment Income
X NONE (No reportable non-investment income.)
B, Spouse’s Non-Investment Income - If you were married during any portion of the reporting year, please complete this
section, (dollar amount not required except for honoraria)
NONE (No reportable non-investment income.)
2005 The First City Company, Salary
2
2006 The First City Company, Salary
528
FINANCIAL DISCLOSURE REPORT
Name of Peison Reporting
Thomas M. Hardiman
IV, REIMBURSEMENTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children. See pp. 25-27 of Instructions.)
1
2
SOURCE
NONE (No such reportable reimbursements.)
Exempt
DESCRIPTION
3
4
5
6
7
V. GIFTS. (Includes those to spouse and dependent children. See pp. 28-31 of Instructions.)
SOURCE
NONE (No such reportable gifts.)
1
2
DESCRIPTION
Exempt
3
4
Date of Report
September 14, 2006
VALUE
$
$
$
$
VI. LIABILITIES. (Includes those of spouse and dependent children See pp. 32-33 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
X NONE (No reportable liabilities.)
1
2
3
4
5
529
FINANCIAL DISCLOSURE REPORT
J Name of Person Reporting
Thomas M, Hardiman
J
Date of Report
September 14, 2006
VII. Page l INVESTMENTS and TRUSTS - income, value, transactions (includes those of
spouse and dependent children. See pp. 34-57 of Instructions.)
NONE (Mo reportable income.
1
PNC Checking Account
A
Int.
L
T Exempt
2
ESB Bank Savings Account
A
Int.
M
T
u
PNC Money Market Account
C
Int.
M
T
4
Vanguard Pnncp Mut. Fund (MF)
A
Div.
K
T
!5
Columbia Banc Common Stk (CS)
A
Div.
K
T
6
Evoxis Convertible Debt
None
'
J
T
WACHOVIA EQUITY ACCT.
7
Evergreen Money Market (MM)
D
Int.
M
T j
8
American Axle & Mfg.
A
Div.
K
T
9
American Int’l Group
A
Div.
K
T
ho
Apria Healthcare Group CS
None
J
T
it
Bank of America CS
■
A
Div.
K
T
12
BJ’s Wholesale CS
None
Ui
Borders Group CS
A
Div.
: 14
j
Cisco Systems CS
|
None
K
T
1 15
Citigroup CS
] A
Div.
K
T
530
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII, Page 2 INVESTMENTS and TRUSTS -income, value, transactions (Includes those of
spouse and dependent children. See pp. 34-57 of Instructions.)
NONE (No reportabie income,
assets, or transactions)
16
Coca-Cola CS
A.
Div.
j !
T
|
1
i
17
Cooper Tire & Rubber CS
A
Div.
J !
T
18
Coventry Health Care CS
None
'
19
Dell CS
None
K
T
20
Direct TV CS
None
K
T
2i
Ernbarq CS
A
Div.
J
T
1
22
Fairchild Semiconductor CS
None
K
T
.23
Fannie Mae CS
A
.
Div.
J
T
; 24
First Health Group CS
None
■25
Freescale Semiconductor B CS
(Motorola spinoff)
None
j 26
General Electric CS
A
Div.
K
T
,27
Hasbro CS
A
Div.
J
T
;28
Helix Energy CS
None
K
T
;29
Home Depot CS
A
Div.
J
■
T
:30
Loews Corp. CS
A
Div.
1 ■
i 31
Magellan Health Svcs. CS
None
K
T
531
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September !4, 2006
VII. Page 3 INVESTMENTS and TRUSTS — income, value, transactions (imiudatimeof
spouse and dependent children. See pp. 34-5 7 of Instructions.)
NONE (No reportable income,
assets, or transactions)
132
Medco Health Solutions CS (Merck
spinoff)
!
!
None !
' |
< 33
Merck CS
A
Div.
.34
Microsoft CS
A
Div.
K
T
35
Motorola Inc, CS
A
Div.
K
T
|
? 36
NCR Corp. CS
None
K
T
1 37
Newell Rubbermaid CS
A
Div.
J
T
j
•38
Newmont Mining CS
A
Div.
39
Nextel Comm. CS
None
40
Nokia Corp. ADR
A
None
K
T
i 41
Nuccntrix Broadband CS
None
\42
Peak Int’l CS
None
J
T
'43
Pfizer CS
A
None
K
T
;44
Pharmion CS
None
J
T
45
Plato Learning CS
None
J
T
] 46
PNC Financial Svcs CS
1 A
Div.
• 47
Sprint Corp. CS
: A
Div.
K
T
532
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
]
Date of Report
September 14, 2006
VII. Page 4 INVESTMENTS and TRUSTS ~ income, value, transactions c/m/i,*., a ,,,, «/
spouse and dependent children. See pp, 34-57 of Instructions.)
NONE (No reportable income,
' assets, or transactions)
48 Tyco CS
49 United Online Inc. CS
50 UST Inc. CS
i 5 1 U. S. Treasury Bill
|52 Wal-Mart CS
53 Waste Management CS
54 WilsonLeatherExp.CS
I WACHOVIA BOND ACCT.
: 55 Evergreen MMF
j A 1
Int.
56 ABN Amro Cap Vll
1 B
Int.
57 Arch Capital Pfd. Stic. (PF)
| A
Div.
. 58 Duke Energy PF
A
Div.
1 59 Eaton Vance MF
A
Div.
: 60 Ryder System Inc. PF
| B
! Div.
6! Safeco Cap PF
|
! B
j Div.
Di\
Div
FINANCIAL DISCLOSURE REPORT
] Name of Person Repotting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 5 INVESTMENTS and TRUSTS -- income, value, transactions andean sm »/
spouse and depindent children. See pp. 34-57 of Instructions.)
40 1 (k) ACCOUNT #1
i 67 Principal MM
l
i 68 Principal Large Cap MF
: 69 Principal Med. Co. Bid MF
1 70 Principal Sm. Co. Grwth MF
171 Principal Int’l Stock MF
1 72 Principal Fin. Grp Inc.
40 l(k) ACCOUNT #2
73 Merrill Lynch
\ NONE (No reportable income,
! assets, or transactions)
i 62 Franklin Biotech MF
■ 63 Investment Co . MF
64 Putnam New Opp. MF
! 65 UnumProvident PF
j 66 Wash. Mut. Inves. MF
Div.
I Div.
| Div.
| Div.
Div.
fat.
j. Div.
Div.
Div.
Div.
Div.
i
Int.
534
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 6 INVESTMENTS and TRUSTS — income, value, transactions (includes atmcf
spouse and dependent children. See pp. 34-57 of Instructions.)
535
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 7 INVESTMENTS and TRUSTS — income, value, transactions (include, those of
spouse and dependent children. See pp. 34-57 of Instructions.)
HMHL
1 NONE (No reportable income,
assets, or transactions)
89
Pfizer CS
A
Div.
J
...
T
90
Qwest CS
None
J
T
91
Sirius CS
None
J
T
92
Time Warner CS
.
A
Div.
TRUST #1
93
PNC Trust Account
A
•
Int.
J
T
.
94
AMCAP MF
A
Div.
J
T
• '
95
Fundamental Inv, MF
A
Div.
K
T
96
Growth Fund of America MF
A
Div.
K
T
97
Investment Co of America MF
A
Div.
J
T
98
New Perspective MF
A
Div.
J
T
99
Washington Mutual Inv. MF
A
Div.
J
T
|
TRUST #2
'Pg 4 '"'
536
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 8 INVESTMENTS and TRUSTS — income, value, transactions c indudaHwseaf
spouse and dependent children. See pp. 34-57 of Instructions.)
NONE (Ho reportable income,
] assets, or transactions)
100 PNC Trust Account
,101 AMCAPMF
i 102 Fundamental Inv. MF
|
I 103 Growth Fund of America MF
104 Investment Co of America MF
105 New Perspective MF
i 106 Washington Mutual Inv. MF
Div.
Div.
Div.
Div.
Div.
Div.
1 TRUST #3
• 107 PNC Trust Account
j 108 AMCAPMF
1 109 Fundamental Inv. MF
110 Growth Fund of America MF
111 Investment Co of America MF
1 112 New Perspective MF
A
A
A
A
A
Int.
Div.
Div.
Div.
Div.
Div.
J
K
K
L
K
K
T
T
T
T
T
T
A
FINANCIAL DISCLOSURE REPORT
VII. Page 9 INVESTMENTS and TRUSTS
spouse and dependent children. See pp. 34-57 of Instructions.)
tSslSlfelifSs
NONE (No reportable income, j
| assets, or transactions)
113 Washington Mutual Inv. MF
A
Div.
; TRUST #4
1 14 PNC Trust Account
A
Int.
i 115 AMCAFMF
A
Div.
i 1 16 Fundamental Inv. MF
....
A
Div.
i
i 1 1 7 Growth Fund of America MF
A
Div.
118 Investment Co of America MF
A
Div.
jll9 New Perspective MF
A
Div.
j 120 Washington Mutual Inv. MF
B
Div.
REAL ESTATE PARTNERSHIPS
1 121 West Moon Twp. Assoc. E Dist.
; 122 Bensalem Realty Assoc. j F j Dist
537
Date of Report
September 14, 2006
income, value, transactions (Includes those of
538
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 10 INVESTMENTS and TRUSTS - income, value, transactions ikw, „/
spouse and dependent children. See pp. 34-57 of Instructions.)
NONE (No reportable income,
assets, or transactions)
123 Vandergrift Assoc.
G
Dist.
N
124 FC Hyde Property Partners
A
Dist
J
125 FC Robinson Partners
C
Dist.
J
126 FC Treesdale Assoc.
A
Dist.
K
! 127 Rodi Land Assoc.
! ■ 1
D 1
j
Dist.
L
.
! 128 FC Donegal Assoc.
j
A |
,
! Dist.
J
; 129 First City GA Partners
.
E ;
Dist.
M
. 130 First City WV Partners
A
j Dist.
J
131 Saddlebrook Associates
A
Dist.
J
132 McIntyre Square Associates
D
Dist.
M
1 133 FC Hampton LP
A
Dist.
K
| SCHWAB ACCOUNT
j..
. 1 34 Amer. Pwr. Conv. CS
A
Div.
135 BardCRInc.CS
I
None
J
u
u
u
u
u
u
u
u
u
u
u
539
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
September 14, 2006
VII. Page 11 INVESTMENTS and TRUSTS — income, value, transactions (includes those of
spouse and dependent children. See pp. 34-57 af Instructions.)
jMjl|
1 NONE (No reportable income,
i assets, or transactions)
136 Becton Dickinson CS
A
Div.
K
T
137 BP PLC ADR
A
Div.
J
T
138 ClarcorCS
A
Div.
J
T
139 Comcast CS
None
K
T
140 Dell CS
None
141 DentsplyCS
A
None
J
T
j 142 EatonCorp.CS
None
J
T
143 EmersonElec.CS
A
Div.
J
T
1 144 Exxon Mobile CS
A
Div.
J
T
145 Gallagher Arthur CS
None
J
T
1 146 General Electric CS
A
Div.
J
T
147 IBM CS
A
Div.
J
T
1148 Ingersoli Rand CS
None
1149 ITTCorp.CS
A
Div.
J
T
! 150 Johnson & Johnson CS
A
Div.
j
T
'.xmmmimmgfflm
wm m ? :
540
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Repott
September 14, 2006
VII. Page 12 INVESTMENTS and TRUSTS — income, value, transactions (includes those of
spouse and dependent children. See pp. 34-57 of instructions.)
j NONE (No reportable income,
| assets, or transactions)
’
151 Kimberly-Clark CS
A.
Div.
J
T
152 Leggett & Platt CS
A
Div.
J
T
1
j 153 McGraw Hill CS
A
Div.
K
T
i 154 Nokia CS
None
J
T
155 Pepsico CS
A
Div.
J
T
156 Pfizer CS
A
Div.
J
T
1 157 Unilever CS
A
Div.
J
T
1 158 3MCS
A
Div.
J
T
159 CBL& Assoc REIT
A
Div.
J
T
160 Liberty Property REIT
A
Div.
J
T
j 161 Schwab MM
A
.
Lnt.
J
T
541
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
Thomas M. Hardiman
Date of Report
August 1. 2006
VIII. ADDITIONAL INFORMATION OR EXPLANATIONS (Indicate part of Report.)
Part III. A - Filer’s Non-Investment Income. Income was received during the reporting period as U.S. Government salary for services
as a United States District Judge.
IX. CERTIFICATION.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children, if any) is
accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was withheld because it met applicable
statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been reported are in
compliance with the provisions of 5 U.S.C. app., § 501 et. seq., 5 U.S.C.. § 7353 and Judicial Conference regulations.
Signature \j^\ 1M • 7 Date
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE
SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. App., § 104.)
542
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bank accounts,
real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts, mortgages, loans,
and other financial obligations) of yourself, your spouse, and other immediate members of your household.
ASSETS
LIABILITIES
Cash on hand and in banks
236
281
Notes payable to banks-secured
U.S. Government securities-add schedule
Notes payable to banks-unsecured
Listed securities-add schedule
t
401
330
Notes payable to relatives
Unlisted securities-add schedule
10
000
Notes payable to others
Accounts and notes receivable:
Accounts and bills due
Due from relatives and friends
Unpaid income tax
Due from others
Other unpaid income and interest
Doubtful
Real estate mortgages payable-add
schedule
IB
US
Real estate owned-add schedule
BM
Chattel mortgages and other liens payable
Real estate mortgages receivable
Other debts-itemize:
Autos and other personal property
K9
Cash value-life insurance
m
Other assets itemize:
Total liabilities
Bn
B|
Net Worth
2
BB
Total Assets
IB
IB
iB?
Total liabilities and net worth
2
B
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
Are any assets pledged? (Add schedule)
■
B
On leases or contracts
Are you defendant in any suits or legal
actions?
Yes
Legal Claims
Have you ever taken bankruptcy?
IBS
B
Provision for Federal Income Tax
543
FINANCIAL STATEMENT
NET WORTH SCHEDULES
Unlisted Securities
Evoxis Convertible Debt 1 0,000
Listed Securities
Vanguard Primecap Mutual Fund
$ 22,139
Columbia Banc
13,550
American Axle
23,366
AIG
19,146
Apria Healthcare
10,195
Bank of America
15,441
Cisco Systems
21,990
Citigroup
22,207
Coca-Cola
13,443
Cooper Tire & Rubber
11,796
Dell
22,550
DirectTV
24,427
Ebay
11,128
Embarq
4,903
Fairchild Semiconductor
25,242
Fannie Mae
15,795
General Electric
17,030
Hasbro
14,210
Helix Energy
19,230
Home Depot
17,145
Magellan Health Svcs.
33,649
Microsoft
17,990
Motorola
18,704
544
NCR Corp
17,395
Newell Rubbermaid
13,495
Nokia
20,880
Peak Int'l
7,950
Pfizer
24,804
Pharmion
16,722
Plato Learning
10,098
Sprint Nextel
35,312
Tyco
28,765
Wal-Mart
17,888
Wilson Leather
8,289
ABN Amro
19,760
Arch Capital
12,750
Duke Energy Pfd.
19,230
Eaton Vance
34,396
Franklin Biotech
14,914
Investment Co.
37,627
Putnam New Opp.
12,706
UnumProvident
21,413
Washington Mutual Inv.
35,061
Principal Large Cap
21,136
Principal Med. Co.
4,049
Principal Sm. Co. Growth
2,184
Principal Int'l
3,445
Principal Fin. Grp. Inc.
2,857
Agere Sys Inc.
73
Central Europe & Russia Fund
4,918
2
545
Cisco
1,953
Citigroup
4,825
Connetics
1,176
Dow Chemical
3,903
EMC
1,097
Ford
1,386
General Electric
3,296
Intel
1,900
Merck
3,643
Nektar
3,668
Panacos
828
Pfizer
4,694
Qwest
809
Sirius
4,750
Wilson Leather
2,055
Amcol Int’l
2,322
Bard
15,036
Becton Dickinson
17,425
BP
11,908
Clarcor
13,477
Comcast
15,705
Dentsply
14,661
Eaton Corp.
8,977
Emerson Elec
14,376
Exxon Mobil
13,534
Gallagher, Arthur
12,060
General Electric
12,772
3
546
IBM
12,145
ITTCORP.
4,895
Johnson & Johnson
12,932
Kimberly-Clark
14,287
Leggett & Platt
14,406
McGraw Hill
15,375
Nokia
7,830
Pepsico
14,688
Pfizer
14,469
Unilever
12,516
3M
10,755
CBL & Assoc,
12,222
Liberty Property
14,361
Allegheny Cnty
25,898
Bentworth Sch. Dist.
25,106
Downington Pa.
26,570
Fox Chapel Pa.
31,869
Lower Merion Twp.
30,101
Northampton Cnty
25,381
Somerset Cnty
19,895
Total Listed Securities
$ 1,401,330
Real Estate Owned
Personal Residence
$ 975,000
Real Estate Mortnaees Payable
Personal Residence
$ 253,000
4
547
ID. GENERAL (PUBLIC)
I. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
In my youth I was frequently instructed by my parents that “from those to whom much is
given, much is expected.” I have been blessed with a strong family, adequate intellect,
great friendships, and good health. From the time I was in high school through the
present I have consistently been involved in volunteer work with the disadvantaged.
During college I became a Big Brother in the program run by the South Bend Big
Brothers Big Sisters program. For the past thirteen years I have been involved with Big
Brothers Big Sisters of Greater Pittsburgh as a volunteer, Director, and past President.
While a resident of Washington, D.C., I volunteered as an English teacher one night a
week at Sacred Heart Church School, which was run by devoted nuns who provided
English classes to first-generation immigrants from all over the world.
My commitment to serve the disadvantaged has been a consistent part of my legal
practice as well. As a law student at Georgetown and as a practicing attorney at Skadden,
Arps, et al,, I performed legal work for immigrants from Spanish speaking countries
through a legal clinic called Ayuda in the Adams Morgan section of Washington, D.C.
At Ayuda I assisted with client interviews and applications for employment authorization,
among other issues. I cannot know the exact amount of hours volunteered at Ayuda, but
it is probably between 100-200 hours.
In the two years I was at Skadden, I maintained an active pro bono caseload of political
asylum cases and represented several immigrants, including a judge front Columbia, an
accountant from Peru, and Salvadorans who were poor and uneducated. I tried two cases
in immigration court by myself and was sole counsel for a woman on whose behalf I
obtained a civil protection order as a result of spousal abuse. Firm records indicate over
167 hours were spent on these cases, although the actual time investment was probably
greater because no bills were sent.
While in Pittsburgh, at the request of County Executive Dan Onorato (who was then a
City Councilman), I took on a pro bono case for African-American public housing
residents who sought to prevent the Department of Housing and Urban Development
from converting units at Allegheny Commons East to the Section 8 program. I estimate
approximately 200 hours on this case. In addition, I worked with Bob Cindrich, who
became a federal judge here, for a criminal defendant who unwittingly entered a guilty
plea. I estimate that I spent 50 hours on this case. I also worked with Paul Titus on a
complex death penalty case for which I estimate 200 hours.
24
548
Since 2001, 1 have served as a Big Brother to a Little Brother. We began our match as
part of a school-based mentoring program while this individual was a fifth-grader. In
2003 we converted our match to a community-based match, which is the traditional
program of Big Brothers Big Sisters. This individual and I now see each other once or
twice a month, usually for extensive periods of time. I estimate that I have spent about
200 hours with him over the course of our relationship.
In sum, I believe lawyers, judges, and all American citizens owe a moral duty to help
those in need.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates — through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What you have done to
try to change these policies?
No.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
There is no Judicial Nominating Commission for nominees to the Court of Appeals.
I was invited by the White House Counsel’s office to interview for the position of United
States Circuit Judge. Following interviews with staff from the White House and
Department of Justice, I underwent a background check conducted by the Federal Bureau
of Investigation and the Department of Justice. I was nominated on September 13, 2006.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
25
549
judicial branch has usurped-many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this “judicial activism” have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the j udiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
The federal courts must be mindful of the separation of powers and our
constitutional structure of government. The federal judiciary should neither
loosen nor tighten jurisdictional requirements such as standing and ripeness. The
court’s duty is to adjudicate “cases” or “controversies” “arising under” federal
law consistent with Article III of the Constitution. Each plaintiff deserves to have
his, her, or its case adjudicated fully and fairly, without regard to the claims of
other putative stakeholders who are not privy to the case. Accordingly, judges
should resolve grievances whether they be brought by individuals, corporations,
or other groups. Some of these cases will have wide-ranging policy implications,
but these implications, if they exist, must necessarily be the consequence of the
adjudication rather than the purpose thereof. Moreover, the United States Courts
of Appeals are duty bound to adhere to the precedents of the Supreme Court.
26
550
AFFIDAVIT
I, 1'krM.fl.S Ai • rfasdi W ^ , do swear that the information
provided in this statement is, to the best of my knowledge, true and accurate.
I ftf £d- / 3in>ts
•ATE)
(NAME)
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Patricia J. Pulkowski, Notary Public,
City of Pittsburgh, Allegheny County.
My Commission Expires May 23, 2009'
Member, Pennsylvania Association of Notaries
38
551
Chairman Specter. Judge Hardiman, I begin by repeating a
statement that I first heard 24 years ago from Senator Thurmond.
The occasion was the hearing for Judge Manisman, who was up for
district court, and in the Middle District, Judge Caldwell.
Senator Thurmond asked them in his inimitable Southern drawl,
“If you are confirmed, do you promise to be cuhrteous?” Translated
into English, that is, “If you are confirmed, do you promise to be
courteous?”
Not surprisingly, Judge Manisman said yes, and Judge Caldwell
said yes. Then Senator Thurmond said, “Because the more pohwer
a person has, the more cuhrteous a person should be.” “The more
power a person has, the more courteous a person should be.”
While I had initially thought that it was a question which had
no significance because the nominee was bound to say that he/she
promised to be courteous, but I have since come to think that it is
a very profound question and a very significant answer.
Many nominees over the years — and when Senator Thurmond is
not here — and he is not here. Senator Thurmond was 100 on De-
cember 2, 2002, and he served until January 3 of 2003, and was
over 100 years old when he left the U.S. Senate and passed about
6 months thereafter. But whenever he is not here, I bring Thur-
mond’s views to mind.
Many nominees have told me years after the fact that they
thought about what Senator Thurmond had said. Because when
you put on a black robe, especially a Federal black robe and you
have life tenure, sometimes even a judge gets up on the wrong side
of the bed and sometimes might not be as considerate or as
thoughtful, and might find people not as well prepared as he or she
thought, or not as direct. But that is a very wise thing to recall,
so I take a few moments here today to repeat it to you.
Judge Hardiman, the basic question which is addressed to all
nominees is a commitment to interpret the law and not to make
the law. Tell me what you think about that general proposition.
Judge Hardiman. Thank you for that question, Senator. It is
very important to tell you that, as a district judge, I view my role
quite differently than the role of legislators, whether they be Rep-
resentatives or Senators.
In the legislative branch, you make the laws. They are placed
into the U.S. Code, as you know, and our role as judges is to inter-
pret the law, not to inject our own policy preferences. So, our task
is to give an honest construction to what laws are passed by the
legislature.
Chairman Specter. Can you illustrate the application of this
principle in any cases which have come before you on the district
court?
Judge Hardiman. Well, yes, I can, Senator. In some cases it is
a rather straightforward application. It may be something as basic
as applying Section 1988 in the Civil Rights arena when a pre-
vailing party in a Section 1983 action, after the case it over and
they have prevailed, then it is the judge’s duty to award attorneys’
fees to that prevailing plaintiff, pursuant to Section 1988 of the
Act.
552
In other instances, the statute may not be as direct or clear, but
it is our role to read the statute as passed by Congress, signed into
law by the President, and to interpret that law honestly and fairly.
Chairman Specter. Do you find any problem, Judge Hardiman,
in applying a principle of law, even though you may have very pro-
found differences with the rule that has been articulated by the
higher courts?
Judge Hardiman. Thank you, Senator, for asking about that. Not
at all. I have no hesitation in applying a law, regardless of what
I might think about it. I think any good judge recognizes his or her
place in our constitutional government, and that place is not to
upset the will of the people as expressed through their elected rep-
resentatives. So, I do not have any compunction about following the
law as written by Congress.
Chairman Specter. Can you think of any issue which has come
before you where you had an intuitive reaction that was adverse
to the ruling that you felt you were required to make?
Judge Hardiman. I cannot say that I have, Senator. Quite hon-
estly, we get one new civil case every business day of the year. We
spend so much of our time reading the law and interpreting the
law, that that does not leave much time for consideration of wheth-
er the law is prudent or might be written in a better way.
I spend all of my time, with the assistance of my law clerks, try-
ing to read the law and interpret it and apply it to the facts pre-
sented in any particular case. So I cannot say that I have spent
much time at all considering the propriety of the laws that I have
had occasion to interpret.
Chairman Specter. Judge Hardiman, you have ethical issues
which come before you. Did your service on the Disciplinary Board
of the Pennsylvania Supreme Court give you any special insights
into those issues?
Judge Hardiman. Thank you for asking about my service on the
Disciplinary Board, Senator. I viewed that as a very valuable exer-
cise. We adjudicated cases of lawyers who had done terrible things,
or at least had been accused of doing terrible things, by their cli-
ents.
It was a real eye-opener because, in a very real sense, those of
us who worked on the Disciplinary Board Hearing Committee saw
the under-belly of the legal system that was very difficult. It has
helped me keep in mind all times that not all lawyers always work
in the best interests of their clients. It is a very delicate situation.
If a lawyer does not appear to the judge to be working in the best
interest of the clients, I think the way to deal with that is to have
hearings on the record and hope that the parties might appear.
Sometimes from the bench, or sometimes in a conference on the
record, the court is in a position to give guidance that not only is
for the ears of the attorney, but may also be for the ears of the liti-
gant, him or herself.
Chairman Specter. With respect to case management, I have
seen matters which are dragged out in a very protracted way in a
court where the judge who is assigned to the case simply lets
events occur, with voluminous discovery, without focusing on the
issue, without narrowing what has to be done, at enormous cost to
both parties.
553
Now, if there is a contested issue of fact, or if depositions are
necessary, or if discovery has to take place, that is what the judge
should permit. But I believe it is really an oversight in many, many
cases of the judges not spending the time on case management to
see to it that the matter is focused and resolved at an early stage,
either one way or another.
Have you had experience on the application of case management
principles to economize on the time of the litigants, the time of the
court, and the expense of the litigants in maneuvering and pushing
through a case?
Judge Hardiman. Yes, I have, Senator. Thank you for the oppor-
tunity to talk about case management. It is very, very important,
in my view, that judges are proactive in managing their caseloads.
I agree with you wholeheartedly that the litigants should not have
to waste time and money to have their day in court. We try very
hard in our district, and I personally, along with my colleagues, try
to get cases to trial within 12 months.
Certainly you have to be considerate of the particular case. Some
complex litigation in the intellectual property field or other cases
involving voluminous documents might take longer. I am certainly
willing, and have granted extensions of time when good cause is
shown, but I think it is important to move the case along.
We have also instituted a pilot alternative dispute resolution pro-
gram in our court specifically to deal with that issue. I don’t know
if you want me to go into that program, but that’s an important
initiative that Chief Judge Ambrose has started, and I am co-
chairing that initiative, to address the concern that you have
raised.
Chairman Specter. Are you sure you want to be an appellate
judge? On the trial court, you have lots of action, see lots of law-
yers, see lots of witnesses, see lots of people.
On the appellate court, you will be cloistered. You will have all
those lengthy, scintillating, exciting briefs to read for not only deci-
sionmaking, but entertainment.
Are you not a little young to be an appellate judge? I asked you
this question when you wanted to be a district court judge, if you
were not young to be a district court judge so I know you would
have been disappointed not to have this question.
Judge Hardiman. Thank you for that question, Senator. First, let
me state that I thoroughly enjoy my work on the district court. I
enjoy my colleagues. Chief Judge Ambrose has been an extraor-
dinary colleague and leader on our court. The other colleagues have
been wonderful. So I am grateful for the opportunity that this Com-
mittee gave me, and the full Senate gave me, to serve as a district
judge.
I do, however, wish to become a circuit judge. I think it would
be an extraordinary opportunity to not only have colleagues and
the collegiality that I share on the district court, but deciding cases
with colleagues is an enterprise that appeals to me tremendously.
I have had an opportunity to meet many of the judges on the
Court of Appeals. They are extraordinarily bright, talented people.
I would learn a great deal from them and I would hope to con-
tribute a great deal to the decisions of that court as a colleague
that they would like to work with. So, that would be my goal.
554
You served on the Governors’ Judicial Advisory Commission, in
which capacity you evaluated and recommended potential judicial
candidates to the Governor. Did that not whet your appetite to be
an appointor, like the Governor, or perhaps an appointor, like the
President, or perhaps recommender like Senator Santorum or
Arlen Specter?
Judge Hardiman. Senator, thank you for asking about that.
Chairman Specter. Stated differently, are you going to stay on
the bench or are you going to run for political office, Judge
Hardiman?
Judge Hardiman. Well, with all due respect, Senator, I hold you
and your colleagues in the legislative branch and the executive
branch in the highest esteem. I recognize the —
Chairman Specter. No plan to run against me in 2008?
[Laughter.]
How about for Governor in 2010? Or how about for President in
2008, something more immediate?
Judge Hardiman. I feel that I have found my home in the judici-
ary, with all candor, Senator.
Chairman Specter. You have been actively engaged in the Big
Brothers Big Sisters program for many years. What would you say
to people to try to encourage more to join those organizations, to
try to mentor the so-called at-risk young people?
Judge Hardiman. I would tell them, Senator, to give it a try. I
think the hardest challenge we face in recruiting Bigs is to get
them to take the first step, to come into the agency and to fill out
the application.
Once the prospective Bigs meet the Littles, then there is tremen-
dous desire on the part of the Bigs to serve. In my personal case,
I had worked in the corporate capacity on the Board of Directors
and had served as president, but I wanted to get involved with a
Little.
But as a husband and a father of three children, I wasn’t con-
vinced that I had the time to do that. So we started a school-based
mentoring program, and that is where I met my little brother,
Saddiq. It was a 1-hour commitment a week, and I knew I could
give 1 hour a week to a fourth grader. What I did not think I could
do, was give more of my time.
As it turned out, Saddiq and I became such great friends that we
converted our match out of the school-based program and now we
are part of the traditional program so we can spend entire days to-
gether, or entire afternoons together. So, my hope would be that
other busy people might take that first step and they would see
what kind of experience they might have.
Chairman Specter. Is it possible for you to maintain any of
those activities while serving on the Federal bench?
Judge Hardiman. Yes, certainly it is, Senator. My relationship
with Saddiq has continued to grow. He is now a freshman.
Chairman Specter. So you are still working with Big Brothers
Big Sisters?
Judge Hardiman. Yes. I cannot raise money. I used to do a lot
of fundraising for that organization. I am not able to raise money.
Chairman Specter. I am sure you are sorry not to be able to do
that, are you not?
555
[Laughter.]
Judge Hardiman. I have redirected my efforts in ways more im-
portant than the financial, I would like to think, Senator.
Chairman Specter. When I talked to you about running for of-
fice, Judge Manisman was on the State Supreme Court and ran for
the U.S. Senate in 1964. That was the last time that has been
done. He lost in the primary to Genevieve Blad, and he was able
to stay on the bench. You could not do that as a Federal judge.
Judge Hardiman. No.
Chairman Specter. I do not even know that you could do that
as a State Supreme Court justice any more.
When Chief Justice Roberts was up for his confirmation, I asked
him how he thought, at the age of 50, he would be able to handle
Justice Stevens, who was 85, 35 years his senior, or Justice Scalia,
who was 68 and having some very strongly held views.
He responded by saying that he had appeared 39 times before
the Supreme Court of the United States, and when he appeared in
court to present his case it was a “dialog among equals”.
So I asked Ken Starr, who had been Solicitor General, what he
thought of Roberts’ answer about a “dialog among equals”. He said
he thought it was exactly wrong. I asked Ken Olson what he
thought about the dialog among equals. He agreed with Ken Starr.
Olson had been Solicitor General as well.
I appeared three times before the Supreme Court. At the podium
with the justices, it did not seem to me it was a dialog among
equals either. But I reflect upon how Judge Edward Becker han-
dled his courtroom, really one of the greatest jurists of all time, a
recipient of the Davit Award; among some 900 Federal judges, he
was the Outstanding Federal Judge.
Judge Becker conducted his courtroom almost as a dialog among
equals. He had a really excellent way of dealing with his clerks
when he would say that in their association he wanted no def-
erence. No defence. He wanted the clerks to tell him exactly what
they thought. That is the way he thought he would get the best
work done.
An argument to encourage that kind of total openness has great
merit, so I am not going to ask you whether you agree with Chief
Justice Roberts. He may know whatever your answer would be and
he may have some occasion to review some of your work some day,
but I would commend to you his approach to oral argument, his ap-
proach to involvement of the advocates and lawyers who appear be-
fore him, as did Judge Becker.
Judge Becker’s stopwatch did not work. When he was in the mid-
dle of an argument, he went on and on if he thought he was mov-
ing in a direction of greater understanding of the case.
Chief Justice Rehnquist was the opposite. When I argued the
Navy Yard case in 1994, the first sitting Senator to do that since
the 1920s, he cut me off in mid-sentence. I was later told that he
was rather lenient because he had been looking for an opportunity
to interrupt a lawyer in the middle of the word “if’.
When he presided on the impeachment proceeding of President
Clinton — and I apologize not only to you, but all the judges in the
impeachment proceedings — he did not cut me off. We had 15 min-
556
utes for closing arguments. It was curious. It was a session not
open to the public. All the rest of it was televised.
When we got to the important part where the Senators spoke
about how they were going to decide the matter, there was a closed
session. But I give you that little insight into Judge Becker, who
I think would be a good model.
Without objection, I am going to introduce the statement of Sen-
ator Leahy, our distinguished Ranking Member, and in conclusion
ask if you have anything you would like to add.
Judge Hardiman. Only to thank you, Senators, for scheduling
this hearing. I want to thank the President for the nomination, and
thank you for those words of advice regarding Judge Becker.
I, like Judge Becker, have scheduled many arguments on motions
for 15 minutes a side, and an hour and 10 minutes later we are
still hearing argument. So, I take to heart your advice in that re-
gard. The late, great Judge Becker is certainly a role model for all
of us coming behind him.
Chairman Specter. Well, you are being considered for a court of
the highest caliber, some great judges. I think Judge Biggs was a
judge on the Third Circuit even younger than you. I think he was
37. Judge Hasty, the first African-American judge to serve on the
Federal Court of Appeals. Judge Maris. I do not mean to leave any-
body out, but there are really some extraordinary jurists.
That concludes our hearing.
[The prepared statement of Senator Leahy appears as a submis-
sion for the record.]
[Questions and answers and a submission for the record follow.]
557
QUESTIONS AND ANSWERS
Tkorn** M.
N. S. Durtnct
United States District Court
Teites District of PonMyl™**
\j g. p D g t Office and Comtirotiee
Seventh A^vrruc *nc Gr«ot Btirct
PittrlWr, PA 1SSJ9
TdrjW. (412) Z0S-7440
Put (412) 208-7*47
December 5, 2006
The Honorable Arlea Specter
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 2051,0
Dear Mr. Chairman:
Attached are my responses to written questions from Senator Leahy and from Senator
Feingold.
Sincerely,
"lg -
Thomas M- Hardiman
United States District Judge
cc: The Honorable Patrick J. Leahy
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20S10
558
J.I/U0/4UUB 11 : lit t AA
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1^1 003
Responses of Judge Thomas Hardiman
Nominee to the U. S. Court of Appeals for the Third Circuit
to the Written Questions of Senator Patrick J. Leahy
1. You were one of at least two dozen federal judges appointed by President Bush
reported in an October 31, 2006 article in Slate Magazine to have made contributions to
key Republicans while under consideration for your nomination. According to that article,
between the time you interviewed with a judicial selection committee in March 2001 and
April 2003, when President Bush nominated you for the district court, you donated
significant sums to Republican candidates.
Do you consider those donations to be consistent with the judicial canon that a judge
must avoid even the appearance of Impropriety and with the duty to promote public
confidence in the judiciary?
How do you believe that this canon should apply to a person under consideration far
a lifetime appointment to the federal bench?
Response: Canon 2 of the Code of Conduct for United States Judges mandates that “a
judge should avoid impropriety and the appearance of impropriety in all activities.” Canon 2A
states: “A judge should respect and comply with the law and should act at all times in a manner
that promotes public confidence m the integrity and impartiality of the judiciary.” In addition.
Canon 7 provides that “a judge should refrain from political activity.” These judicial canons are
very important and in serving as a United States District Judge for the Western District of
Pennsylvania, I have endeavored at all times to follow the Code of Conduct. Prior to my
nomination to the district court, I served as the Treasurer of the Republican Committee of
Allegheny County. In that capacity, I was involved with fundraising for local, state, and national
Republican candidates. Once nominated to the district court I resigned my post as Treasurer
and ceased all political activities. The question of whether Canon 2 or Canon 7 should apply to
judicial nominees in addition to sitting judges is a question upon which reasonable minds could
differ. At present, the line is drawn upon assumption of judicial duties. Despite this feet, I
thought it proper to cease all political activities upon being nominated rather than waiting for
confirmation.
2. In the recent confirmation hearings for Chief Justice Roberts and Justice
Alito, there was extensive discussion of the amount to which judges and Justices are
bound to follow previous court decisions by the doctrine of stare decisis.
In your opinion, how strongly should judges bind themselves to the doctrine
of stare decisis ?
Response: Stare decisis is a venerable doctrine that requires not only that lower
federal courts follow decisions of higher courts, but also that appellate courts abide by
decisions rendered by prior panels of that court. Stare decisis provides stability and
559
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predictability such that the law develops in an orderly fashion. In my capacity as a trial
judge, I have done my best to follow carefully the law not only as written by Congress,
but also as interpreted by the Supreme Court and the Court of Appeals for the Third
Circuit. The Constitution and the rule of law require nothing less. If I am confirmed to
the Court of Appeals for the Third Circuit, I would carefully follow the precedents of the
Supreme Court and the precedents of the Third Circuit.
3. A central question for me with any judicial nominee Is whether he or she will
act as a check and balance on the other branches of government. We are at a
pivotal moment in American history, faced with a President making sweeping
claims to nearly unchecked executive power. Last December, after the McCain
Amendment prohibiting cruel, inhuman, and degrading treatment of detainees by
U.S, personnel under all circumstances was strongly opposed by the Administration,
President Bush worked out a deal with Senator McCain and the amendment passed
the Senate with overwhelming support.
However, in his December 30 signing statement. President Bush ignored the
public deal and wrote that the executive branch “shall construe” the McCain
amendment “in a manner consistent with the constitutional authority of the
President to supervise the unitary executive branch and as Commander in
Chief and consistent with the constitutional limitations on the judicial power,
which will assist in achieving the shared objective of the Congress and the
President ... of protecting the American people from further terrorist
attacks.”
If an alleged violation of the McCain Amendment prohibiting cruel,
inhuman, and degrading conduct by American personnel, were to come
before a court - and I am not asking you to comment on the constitutionality
or propriety of the law - what weight, if any, would you attach to the
President's signing statement?
Response: Although I understand that the question of Presidential signing
statements is the subject of discussion and debate, 1 have not had occasion to hear any
case involving this issue. In addition, I am unfamiliar with the terms of the McCain
Amendment passed by the Senate. Moreover, in light of the possibility that treatment of
detainees could come before me, I do not believe it would be appropriate to comment in
greater detail than to state that I would review the facts of the case in light of controlling
law and render my decisions accordingly.
2
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4, A year ago it was revealed that for four years President Bush has authorized
the NS A to conduct warrantless wiretapping of American citizens, with no review
by any court, including the FISA court specifically established by law to review such
requests. To justify this practice, the President and his defenders have invoked a
theory of extraordinarily broad and largely unchecked presidential power. This
appears to be the same legal argument for a “Commander in Chief override” that
was used by the Administration as justification for bypassing legal restraints on
torture. The Administration’s legal memo on torture was withdrawn but the legal
arguments contained in it were never disavowed.
Do you agree with the President’s defenders that there is a Commander in
Chief override giving a wartime President the authority to bypass the FISA
Court and authorize warrantless spying on IIS. citizens or to authorize or
excuse the use of torture in interrogations of enemy prisoners, despite
domestic and international laws prohibiting the practice?
Response: I have not had occasion to rule on any case involving the program
referenced in the question and am not familiar with the facts related to the program.
Generally speaking, if there were a challenge to the President’s authority in such a
circumstance, it would likely be analyzed under the framework set forth in Youngstown
Sheet & Tube Co. v. Sawyer , 343 US. 579 (1952). I do not believe it would be
appropriate to comment further in light of the possibility that I would be assigned to hear
a case that involves these issues. As with any case, I would carefully consider the facts
and apply the controlling law thereto in rendering decisions.
5. Over the past decade, the Supreme Court has struck down an unprecedented
number of federal statutes, most notably several designed to protect the civil rights
of Americans, as beyond Congress’s power under Section S of the Fourteenth
Amendment, for example, Flores v. City ofBoerne , 1 17 S. Ct. 2157 (1997), Kimel v
Florida Board of Regents, 120 S. Ct. 631 (2000), and Board of Trustees v. Garrett, 19
S. Ct. 2240 (1999). The Supreme Court has aiso recently struck down statutes as
being outside the authority granted to Congress by the Commerce Clause, such as in
the case of U.S, v. Lopez, 115 S. Ct. 1624 (1995) or U.S. v. Morrison, 120 S. Ct. 1740
( 2000 ).
I am hopeful that the Court’s decision last year in Gonzales v. Raich, 125 S.
Ct. 2195 (2005) signals a turn away from the diminishing of the authority of
Congress to legislate to protect the American people.
What is your understanding of the scope of congressional power under
Article I of the Constitution, in particular, the Commerce Clause, and under
Section 5 of the Fourteenth Amendment?
3
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Response: Congress’s enumerated powers under the Commerce Clause (Art. I,
§8) and Section 5 of the Fourteenth Amendment are important Constitutional provisions.
Members of Congress, like federal judges, take an oath to uphold the Constitution and
Acts of Congress are presumptively constitutional. In the Court’s more recent cases it
has emphasized that Congress' power to regulate commerce among the states is broad,
but not unlimited. Section 5 of the Fourteenth Amendment enables Congress to enforce
the Fourteenth Amendment by appropriate legislation. According to the Supreme Court,
the appropriate test is whether the legislation enacted under Congress’ authority under
Section 5 exhibits “a congruence and proportionality between the injury to be prevented
and the means adopted to that end” City ofBoeme v. Flores, 521 U.S. 507, 520 (1997).
As with any other case, I would decide cases involving the Commerce Clause and
Section 5 of the Fourteenth Amendment based on the facts of the case and the controlling
law.
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Responses of Judge Thomas Hardiman
Nominee to the U. S. Court of Appeals for the Third Circuit
to the Written Questions of Senator Russell D. Felngold
as you know, Canon 7A of the Code of Conduct for United States Judges states that: “A
judge should not.. .solicit funds for or pay an assessment or make a contribution to a
political organization or candidate....” The Code of Conduct, according to its commentary,
provides that it is “designed to provide guidance to judges and nominees for judicial
office.”
According to the Center for Investigative Reporting, between March 29, 2001, when you
first met with the Pennsylvania Judicial Nominating Commission, and February 24, 2003,
just two months before you were formally nominated to the U.S. District Court for the
Western District of Pennsylvania, you donated a total of $2,400 to Senator Arlen Specter
and $2,000 to Senator Richard Santorum.
In light of these political contributions, the majority of which appear to have been made
even after May 2002, when you were interviewed by the White House for the U.S. District
Court nomination, please answer the following questions:
1* When did you learn that you would be nominated to the U.S. District Court for the
Western District of Pennsylvania?
Response: To the best of my recollection, I learned that I would be nominated to the U. S.
District Court for the Western District of Pennsylvania on either the day before I was nominated
or the actual day of the nomination (April 9, 2003).
2 . When you made the political contributions referred to above, were you aware of the
prohibition on political contributions laid out in Canon 7 of the Code of Conduct?
Response: At the time I made these political contributions, 1 was not familiar with Canon
7 of the Code of Conduct, although I had a general understanding that federal judges were
prohibited from engaging in political activity.
3. When you made the political contributions referred to above, were you aware that the
Code of Conduct, according to its commentary, provides that it is “designed to provide
guidance to judges and nominees for judicial office.”
Response: No.
4. If your answer to the Question #2 is “yes,” did you believe at the time that, as
someone under consideration for a federal judicial nomination, you were governed
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by the Code of Conduct or should be guided by it?
Response: N/A,
5. Do you believe that it is appropriate for individuals who know they are under
consideration for a judicial nomination to make political contributions? If so, why?
Response: The Code of Conduct prohibits judges from engaging in political
activity. I believe that reasonable minds could differ as to whether individuals under
consideration for judicial office should refrain from making political contributions. In
my case, I thought it prudent and appropriate to cease all political activities once I was
nominated.
6. Senator Specter has said that if you had consulted with him about the
contributions, he would have told you not to make them. Did you consider
consulting Senator Specter? Did you consult Senator Santorum? Did you consult
anyone else about the propriety of making political contributions? If so, what
advice were you given?
Response: I neither considered consulting, nor actually consulted anyone
regarding the propriety of making political contributions.
7. Do you believe that the Code of Conduct governs the conduct of judicial
nominees and prospective nominees as well as judges, and thus nominees and
prospective nominees should avoid making political contributions?
Response: According to its terms, the Code of Conduct applies to “United States
Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal
Claims Judges, Bankruptcy Judges, and Magistrate Judges.” It is my understanding that
the Code does not apply to prospective nominees. As for actual nominees, I note that the
Commentary to Canon 1 states that the Code “is designed to provide guidance to judges
and nominees for judicial office.”
8. If the answer to Question #7 is “no,” do you think It is unreasonable for others to
believe that judicial nominees and prospective nominees should refrain from
making political contributions based on the guidance that the Code of Conduct
provides?
Response: I do not believe it is unreasonable for others to believe that nominees
should refrain from making political contributions and this is consistent with my view.
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The question of whether prospective nominees should refrain from making such
contributions is more difficult because the universe of prospective nominees is very large
and the question of when one becomes a “prospective” nominee is not discerned as easily
as when one becomes a nominee.
9. In your view, what ethical concerns arc raised by judicial nominees making
contributions to candidates or political parties?
Response: Although reasonable minds could differ on the question, in my view
nominees should not engage in any political activity, including making donations.
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SUBMISSION FOR THE RECORD
Statement of Senator Patrick Leahy
Ranking Member, Judiciary Committee
On the Nomination of Thomas M. Hardiman
November 14, 2006
The Committee returns during the lame duck session of Congress for a hearing today on
the nomination of Judge Thomas M. Hardiman to an important seat on the U.S. Court of
Appeals for the Third Circuit. This lame duck session comes on the heels of national
elections in which Americans overwhelmingly cast their ballots for change. For too long,
the White House has undermined our bipartisan process for selecting judicial nominees
by refusing to work with us on consensus nominees.
In the days following the election, the President spoke about becoming a uniter and
working with Congress in a bipartisan way. Regrettably, it appears he will not be
keeping that promise. I understand the President intends to renominate a number of
controversial nominees. That unfortunate decision evidences that he intends to stay the
partisan course when it comes to judicial nominations.
This needless conflict and emphasis on partisanship over progress is nothing new for this
White House, and has been aided by the Republican-controlled Congress that is now
coming to a close. At the end of our last legislative session, the Republican leadership
did not follow through on the hard work done by the Chairman and by this Committee to
report out more than a dozen consensus judicial nominations. Democrats on the Judiciary
Committee worked hard to accommodate Chairman Specter and make up for time wasted
by the Republican leadership on controversial nominations. Unfortunately, Republican
objections led to the Senate recessing in September without confirming additional
judicial nominations.
Only 3 1 judicial nominations have been confirmed in the first 10 months of this year.
During the 17 months the Democrats were in charge of considering President Bush’s
judicial nominations and I was Chairman of the Judiciary Committee, we confirmed 100
judges. In the last 22 months of Republican control, with a Republican President, we
have confirmed only half that - just 53 nominees. This number could have been much
higher had Republicans cooperated. Instead, Republican objections in September
blocked more than a dozen nominees, and we are left with continuing vacancies instead
of sitting judges.
Six of these judicial nominees would have filled vacancies that the Administrative Office
of the U.S. Courts has determined to be judicial emergencies. The confirmation of Judge
Kent Jordan to the Court of Appeals for the Third Circuit would end a judicial
emergency. So would the confirmations of Laurence O’Neill for the U.S. District Court
for the Eastern District of California, Leslie Southwick for the U.S. District Court for the
Southern District of Mississippi, and three nominees - Robert Jonker, Paul Maloney, and
Janet Neff- to the U.S. District Court for the Western District of Michigan.
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Our progress in confirming judges was undone by some on the Republican side. It is
particularly ironic that after months of Republicans repeating a new mantra, that every
one of the President’s nominees, whether qualified or not, whether engaged in conflicts
of interest or not, whether supported by home state Senators or not, is entitled to a swift
up or down vote, Republican objections stalled more than a dozen judicial nominees.
Apparently Republicans who were prepared to employ the nuclear option in the Senate
and change its longstanding rules are still utilizing a double standard by which concerns
of Democratic Senators are to be ignored but those of anonymous Republicans prevent
Senate consideration.
After the last working session in September, I learned that several Republicans were
objecting to Senate votes on some of President Bush’s judicial nominees. According to
press accounts. Senator Brownback had placed a hold on Judge Neffs nomination, even
though he raised no objection to her nomination when she was unanimously reported out
of Judiciary Committee. Later, without going through the Committee, Senator
Brownback sent questions to Judge Neff about her attendance at a commitment ceremony
held by some family friends several years ago in Massachusetts. There is no question
about Judge Neffs qualifications. Judge Neffs nomination is part of a White House
agreement. She was nominated by President Bush on the recommendation of her home
state Senators. She would have filled a judicial emergency vacancy.
Of course, this is not the first time Republicans have objected to an up or down vote on
judicial nominees. More than 60 of President Clinton’s judicial nominees were pocket
filibustered by Republicans without an up or down vote. Last year the President’s
nomination of Harriet Miers to a vacancy on the Supreme Court was stalled and then
withdrawn due to Republican objections. Republicans questioned her qualifications and
demanded answers about her work at the White House and her legal philosophy. They
defeated her nomination before allowing her a hearing.
I wish that earlier this year we had followed the customary practice in the Senate for the
leaders. Republican and Democratic, to sit down with the Chairman and the Ranking
Member of the Judiciary Committee and to work out a process to conclude the year with
respect to judicial nominations. Sadly, that meeting did not occur.
I do want to acknowledge the kind words of the Majority leader who noted before the last
recess that we have made “tremendous progress on confirming qualified judicial
nominees.” By Senator Frist’s count, the Senate “has confirmed 88 percent of President
Bush’s judicial nominees, giving him the highest confirmation rate since President
Reagan.” He calculates that “95 percent of all judgeships are filled, including more than
92 percent of ail circuit court judgeships and more than 95 percent of all district court
judgeships.” He notes that the Senate has confirmed “[njearly 160 nominees” for
judgeships under the 46 months of his leadership. The only thing he leaves out is that
fully 100 were confirmed during the 17 months that I chaired the Judiciary' Committee
and Senator Daschle was the Senate’s leader. Likewise, Chairman Specter acknowledged
before the recess that the Democrats on the Judiciary Committee and in the Senate have
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not been the obstructionists that some in the right-wing have claimed, but instead worked
in an accommodating manner.
This year, we have confirmed 3 1 judicial nominees so far. This far surpasses the total
number of judges confirmed in the 1996 congressional session, when Republicans
controlled the Senate and stalled the nominations of President Clinton. In the 1996
session, Republicans would not confirm a single appellate court judge, not one, and
moved forward on only 1 7 district court judges all session. That was the only session of
the Senate I can remember in which the Senate simply refused to consider appellate court
nominations. That was part of their pocket filibuster strategy to stall and maintain
vacancies so that a Republican President could pack the courts and tilt them decidedly to
the right. In confirming eight Circuit Court judges this year, we have already confirmed
more Circuit Court judges than in 1996, 1997, 1999, or 2000.
We also could have accomplished more this year if the White House had sent over
consensus nominees early in the year. The White House did not, Many of the nominees
we are now trying to consider were not even nominated until July. Regrettably, the
Administration concentrated on a few highly controversial nominees and delayed until
recently sending other nominations and thereby prevented us from having the time to do
any meaningful review.
By contrast, there are five judicial emergencies still without any nominee at all. Nor has
President Bush fulfilled his pledge to make a nomination for every vacancy within 1 80
days. Of the vacancies currently without a nominee, 13 have been vacant for more than
1 80 days. An additional 1 3 of the pending nominees were nominated only after their
vacancies had been open for more than 180 days.
The record is clear - when we work together on consensus judicial nominees, we can
make progress. When I led the Judiciary Committee for 1 7 months, the Senate
confirmed almost twice as many of this President’s judicial nominees as have been
confirmed in the two years of the current Congress.
I was encouraged by President Bush’s pledge this week to work with Congress in a
bipartisan and cooperative way, and I hope he intends to change course and honor that
pledge by working with us to confirm consensus nominees. This process starts with the
President. With all the divisiveness in the country today, the American people would
cheer consultation and nominees who unite instead of divide.
The American people want the Senate to be more than a rubber stamp. They want the
Senate to do its job by carefully evaluating nominees for lifetime judgeships. The
American people expect the federal courts to be fair forums where justice is dispensed
without favor to the right or the left. These are the only lifetime appointments in our
entire government, and they matter a great deal to our future. I will continue to work
with Senators from both sides of the aisle to ensure the independence of our federal
judiciary,
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